Can a Registrar Be Sued For This?

[DomainOgre]

Correct, Mr. Deleted. It was showing in my account, but was no longer owned by me. I think this is known as a "ghost listing" or something like that.

They are just going to give me back my renewal fee, so no need in withholding the Registrar's name anymore. Not exactly a Registrar with a golden reputation, but it was RegisterFly. The domain was Imitation.org. Here is the brilliant response I got word-for-word:

"Chris,

It seems the domain got expired last year and you didnt renew the domain on time.

Created On:23-Jun-2005 18:58:11 UTC

This is copied from the whois, means the domain was registered as a new domain.

We have given REFRESH tool in the reports area so client can refresh their account to remove expired / transfered domains also.

We have refunded $8.99 to your registerfly account.

Refund for Renewal 8.99 2006-2-21 Refund for Renewal

Thank you

Hosting Support
Technical Support"

Before they removed imitation.org, I took a screenshot of it in my account. The domain was supposed to expire on April 6th of this year so I guess that means it expired that time this year. Well, the renewal was on April 10th. I have renewed many domains at RegisterFly that have been expired more than 4 days and they have all been renewed for real.

Ok, the main two questions are now this:

1. Do I no longer have a case against them if the domain had expired or does it only matter that I had paid for a service under a contract and they did not deliver (although they said they did with the renewal confirmation by email) on their end?

2. If I do still have a case, should I appraise Imitation.org to see if it would be worth taking legal action over?

Like I told them in my response, I no longer feel safe having my domains at RegisterFly. I just better not lose anymore domains due to their negligence before I can move them all out.

I would appreciate it if you only post if you can help with either of the two questions above. All the info I have about this matter is now in the thread. Thanks for any help.

 

[Dave Zan]

I don't know about #2. But for #1:

http://registerfly.com/info/terms.php

YOU AGREE THAT REGISTERFLY.COM WILL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE DOMAIN NAME REGISTRATION IN YOUR NAME, (2) USE OF YOUR DOMAIN NAME REGISTRATION, (3) INTERRUPTION OF BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR SITE OR THE WEB SITE(S) OR SERVICES YOU ACCESS BY THE DOMAIN NAME REGISTERED IN YOUR NAME; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) EVENTS BEYOND REGISTERFLY.COM'S CONTROL; (8) THE PROCESSING OF THIS APPLICATION; (9) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD; OR (10) APPLICATION OF THE DISPUTE POLICY. REGISTERFLY.COM ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF REGISTERFLY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL REGISTERFLY.COM'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR REGISTRATION OF THE DOMAIN NAME, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

12. Indemnity:

You agree to release, indemnify, and hold all Registry Operators, Registerfly.com, their contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claims and expenses, including attorney's fees, of third parties relating to or arising under this Agreement, the Registerfly.com services provided hereunder or your use of the Registerfly.com services, including without limitation infringement by you, or someone else using any Registerfly.com service with your computer, of any intellectual property or other proprietary right of any person or entity, or from the violation of any Registerfly.com operating rule or policy relating to the service(s) provided. When Registerfly.com is threatened with suit by a third party, Registerfly.com may seek written assurances from you concerning your promise to indemnify Registerfly.com; your failure to provide those assurances may be considered by us to be a breach of your Agreement and may result in deactivation of your domain name. This indemnification is in addition to any indemnification required under the Dispute Policy.

14. Breach and Revocation:

Registerfly.com reserves the right to suspend, cancel, transfer or modify your domain name registration or suspend, cancel or modify other services we provide in the event (a) you materially breach this Agreement (including the Dispute Policy) and do not cure such breach within thirty (30) days of notice by Registerfly.com, (b) you use the domain name registered to you to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, (c) you use your domain name in connection with unlawful activity, or (d) grounds arise for such suspension, cancellation, transfer or other modification as provided for in this Agreement. You further acknowledge and agree that your registration of a domain name is subject to suspension, cancellation or transfer by any ICANN procedure, by any registrar (including Registerfly.com) or registry administrator procedures approved by an ICANN-adopted policy, (1) to correct mistakes by Registerfly.com, another registrar or the registry administrator in administering the name or (2) for the resolution of disputes concerning the domain name.

15. Right Of Refusal:

We, in our sole discretion, reserve the right to refuse to register or reserve your chosen domain name or register you for other Registerfly.com service(s), or to delete your domain name within thirty (30) calendar days from receipt of your payment for such services. In the event we do not register or reserve your domain name or register you for other Registerfly.com service(s), or we delete your domain name or other Registerfly.com service(s) within such thirty (30) calendar day period, we agree to refund your applicable fee(s). You agree that we shall not be liable to you for loss or damages that may result from our refusal to register or reserve, or delete your domain name or register you for other Registerfly.com service(s)

Pretty long. But that's how potentially "powerful" legal fine prints can be.

The only way to really know is to go ahead and sue them. Hope for the best,
but expect the worst.

 

[DomainOgre]

Thanks, DaveZan. I think that may have cleared up both questions right there. It looks pretty strong. Imitation.org is a great .org, but I dont think its worth a lawsuit by itself against that agreement.

Still, RegisterFly has lost my business for good after being a customer for about 4 years. They better let me get the rest of my names out of there without any problems or I may test that agreement in court after all.

 

[FineE]

...BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

I would first find out what the laws in your jurisdiction have to say about the exclusion or limitation of liability for consequnetial or incidental damages first if you are considering litigation now or at a time in the future.

By the way this type of languge is very common in many agreements but it may not in many cases protect the writer from liablity. The legal fine print may not be as powerful as it first looks.

 

[Domagon]

...Before they removed imitation.org, I took a screenshot of it in my account. The domain was supposed to expire on April 6th of this year so I guess that means it expired that time this year. Well, the renewal was on April 10th. I have renewed many domains at RegisterFly that have been expired more than 4 days and they have all been renewed for real...

In such situations, it's advisable to check the master registry whois before renewing and then again about a day or so afterwards (to allow time for whois update) to see if the whois last updated date and expiration date have changed.

The before and after whois checks are necessary because registry data can sometimes be ambiguous and not reflective of reality ... ie. an extra year may be added at the registry level for an expired domain.

If it's a really, really important domain, then it's often best to renew for more than 1 year, such as 3 or more ... that way it's easy to ascertain the registry updated properly.

With all that said, there are no guarantees beyond checking one's domains against each registry's master whois (or zone) every so often to be sure nothing gets "lost".

It's still very much a wild-wild west out there in domain land.

Ron

 

[Dave Zan]

I would first find out what the laws in your jurisdiction have to say about the exclusion or limitation of liability for consequnetial or incidental damages first if you are considering litigation now or at a time in the future.

By the way this type of languge is very common in many agreements but it may not in many cases protect the writer from liablity. The legal fine print may not be as powerful as it first looks.

I agree with your post. But if you think about it:

1. More often than not, the registrar's lawyers know that all too well. But at
least they know the states' laws enough to know what to put in there.

2. They've learned from netsol's and other registrars' experiences to ensure it
doesn't happen to them. (and I'm not just referring to sex.com...)

3. If it comes to Court, it's a sure bet judges won't exactly understand a thing
despite someone trying to "painlessly" explain how this thing goes.

No doubt, the only way to really know is to find out. (and hope the judge for
the case understands techie stuff...)

On the side, DomainOgre, I just remembered I know someone there. Just PM
me if you need me to bug him, but after you're 100% sure you've done all you
needed to do. :-D