DeJohn v. The .TV Corp. Int’l

Citation: DeJohn v. The .TV Corp. Int’l, 245 F.Supp.2d 913 (C.D. Ill. 2003).

Factual Background
Plaintiff, David DeJohn (“DeJohn”), attempted to purchase several domain names from defendant, .TVCorporation (“.TV”), for the advertised price of $50.00 per domain. DeJohn submitted his application for six domain names (business.tv, wallstreet.tv, x.tv, realtor.tv, sex.tv and mayberry.tv) to .TV via the website Register.com and immediately tendered payment of $50.00 for each domain name.

As part of the registration process, DeJohn accepted Register.com’s Service Agreement. The electronic form of the Agreement was comprised of a click-wrap agreement that required the plaintiff to click on a box indicating that he had read, understood and agreed to the terms of the contract before attempting to register any of the domain names. The text of the agreement was provided via a link directly above the box labeled, “I ACCEPT”. The text of the Service Agreement informed consumers that by accepting the Terms, they understood that “Register.com c[ould] not guarantee registration or renewal of a desired domain name.”

Shortly after completing the application process, Register.com sent DeJohn several e-mail messages indicating that he had successfully registered all of the requested domain names. Soon after sending DeJohn the confirmation email, Register.com realized that the messages were sent in error. Within 72 hours after the confirmation was sent, Register.com notified DeJohn that the previous emails were erroneously sent and that all but one of the applications was unsuccessful (mayberry.tv was approved). As a result of the mix-up, Register.com refunded all of DeJohn’s money in connection with the domain name registration.

Trial Court Proceedings
Despite being refunded his money, DeJohn brought suit against .TV and Register.com for breach of implied contract. The plaintiff argued that the implied contract was created when his domain names were accepted, and not the Register.com Agreement, governed his relationship with Register.com. and .TV. Alternatively, DeJohn argued that he was not bound by the terms of the Service Agreement because the terms of the Service Agreement were ambiguous and inconsistent with .TV’s Agreement. Both defendants filed a 12(b)(6) motion with the court, claiming that DeJohn’s complaint failed to state a claim for which relief can be granted.

The district court granted both defendants’ 12(b)(6) motion for failure to state a claim. In arriving at this conclusion the district court relied on the logic found in Moore v. Microsoft Corp., which denied recovery under an implied contract theory when an enforceable express contract governed the transaction. The court determined that the Service Agreement was an “express contract” and explicitly provided that it was to be the “exclusive agreement” between the plaintiff and the defendant and could not be modified “except by means of a written document signed by both parties.”

Additionally, the court reasoned that DeJohn’s argument regarding the enforceability of Register.com’s Service Agreement lacked merit. In reaching this determination, the court reasoned that the plaintiff had “ample opportunity to review the terms of the Register.com Agreement by clicking on the hyperlink” provided above the “I ACCEPT” box. Further, the fact that DeJohn claimed he did not read the contract was irrelevant since failure to read is never a “get out of jail free card.” Moreover, the court determined that DeJohn’s claim that the Agreement is inapplicable due to inconsistent choice of law clauses was also meritless. The district court reasoned that such a minor conflict was not enough to disregard the entire Register.com contract since the court was readily equipped to apply New York law to disputes about Register.com contracts and apply California law to disputes that arose out of TV’s contract.