Tech Trans Hotline

Knowledge of a Web site owner's terms of use is enough to bind a Web site visitor to those terms, even if those terms are in contravention of an agreement between the registrar and ICANN. In Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004), 356 F.3d 393 (2d Cir. 2004), the Second Circuit affirmed a preliminary injunction order from the District Court enjoining Verio from executing multiple queries of Register's Web site database, which contained pedigree information of Internet domain name registrants (WHOIS data), and using such information to solicit sales of Verio's Web site development services. “The fact that Register owed a contractual obligation to ICANN not to impose certain restrictions on use of WHOIS information does not mean that it owed an obligation to Verio not to impose such restrictions.” Id. at 400 (emphasis added). Furthermore, according to the Second Circuit, there is “no reason why the enforceability of the [Web site owner]'s terms should depend on whether the [Web site visitor] states (or clicks), I agree” if the user is aware of those terms.

A release provision in a settlement agreement between two parties, which releases the parties and their “parents”, does not insulate a third party who subsequently purchases one of the parties from liability for patent infringement. Unova, Inc. v. Acer, Inc., No. 03-1244 (Fed. Cir. Mar. 31, 2004). The Federal Circuit, applying California law, reversed a Central District of California decision granting Hewlett-Packard Company summary judgment on the grounds that a settlement agreement between Unova, Inc. and Compaq Computer Corp. released Hewlett-Packard from patent infringement liability for infringing Unova's patents, because Hewlett-Packard purchased Compaq and became its parent. The court found that the plain language of the mutual releases indicated the parties' intention to have the releases apply only to “parents” of the parties who were parents at the time the releases were granted, and were not intended to release Hewlett-Packard from liability for acts of infringement prior to its purchase of Compaq. Since the releases were written in the present tense, and applied to acts that occurred on or before the date of the releases, Hewlett-Packard was not entitled to benefit from the Unova release because it became Compaq's parent almost a year after the date the releases were signed.