Judge says defendants are more than just a domain name registrar.
United States District Judge Cecilia Altonaga has squashed a motion to dismiss by domain name registrar Moniker in its battle with Transamerica.
In a 25 page order (pdf), Altonaga denied Moniker’s motion and renewed a debate about whether domain name registrars can be held liable for their customer’s behavior. The judge was not attempting to judge Transamerica’s allegations, but merely if the case should go forward based on the allegations. Still, her decision should be troubling to domain name registrars.
The key issue is whether a registrar is immune under the Anti-Cybersquatting Protection Act (ACPA). In its Motion to dismiss, Moniker pointed to the actual language of ACPA as well as an often cited case that confirmed that registrars aren’t liable.
But Transamerica argued that Moniker wasn’t acting just as a registrar in this case, as the judge explains:
In this case, Transamerica alleges that Oversee and the Moniker Defendants, together with the ostensible registrants – the John Doe Defendants – are the de facto registrants of the domain names in question. Transamerica claims that Moniker was not merely acting as a registrant in providing registration services to the John Doe Defendants for the infringing domain names, but instead was part of a scheme to profit from the use of the infringing names. As Transamerica points out, Moniker receives a fee each time an internet user clicks on one of the links attached to the infringing domain sites; such payment establishes at least partial ownership in the domain name. (See Hearing 63, 67). Transamerica’s Amended Complaint alleges that Moniker Online provides registration services, Moniker Privacy protects the identity of the ostensible registrant, and Oversee provides the monetization service to the domain name. (See id. at 65). Together, these three Defendants are part of a scheme by which they profit from the misuse of others’ trade and service marks. (See id.). These allegations, taken as true as they must be on a Rule 12(b)(6) motion, satisfy the requirement that Defendants be acting as more than registrars so as to strip them of immunity under the ACPA.
The judge agreed, and said that if the allegations are true, then the defendants are not merely the domain registrar for the subject domains. Transamerica argues that the defendants enable people to register the domains, hide their identity, and then use DomainSponsor to monetize the domains. (Oversee.net declined to comment for this article since this is an open legal issue.)
So what does this mean for a domain registrar that provides domain name privacy services, as most do? What does this mean for a domain registrar that puts up a placeholder parking page on an infringing domain, as most do? Or a registrar that doesn’t do a good enough job making sure customers use valid whois information?