                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DOMAIN NAME COMMISSION                          No.    18-35850
LIMITED,
                                                D.C. No. 2:18-cv-00874-RSL
                Plaintiff-Appellee,

 v.                                             MEMORANDUM*

DOMAINTOOLS, LLC,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                        Argued and Submitted June 7, 2019
                               Seattle, Washington

Before: BEA and NGUYEN, Circuit Judges, and MÁRQUEZ,** District Judge.

      Domain Name Commission Limited (“DNCL”) is a non-profit New Zealand

corporation tasked with administering New Zealand’s “.nz” top-level internet

domain registry. DomainTools is a United States company based in Washington



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
state that aggregates publicly available website information collected from top-

level internet domain registries like DNCL. But DNCL makes such information

publicly available subject to certain terms of use, which DNCL alleges that

DomainTools violated. Accordingly, DNCL sued for breach of contract and

moved for a preliminary injunction, which the district court granted, causing

DomainTools to file the instant interlocutory appeal.1

                                            I

      We review a decision granting a preliminary injunction for abuse of

discretion. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

2011). A district court abuses its discretion if its decision rests on an erroneous legal

standard, or “resulted from a factual finding that was illogical, implausible, or

without support in inferences that may be drawn from the facts in the record.” Herb

Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1247, 1250 (9th Cir.

2013) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc)).

      In considering whether the district court abused its discretion, we must

examine the district court’s application of the preliminary injunction standard. A

party “seeking a preliminary injunction must establish that [it] is likely to succeed



1
  Because the parties are familiar with the rather technical facts of this appeal, we
recite them only as necessary to explain our decision.

                                           2
on the merits, that [it] is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in [its] favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20 (2008). But where the injunction sought is “mandatory” (as opposed to

“prohibitory”), courts apply a stricter standard. A party requesting a mandatory

injunction must show “that the law and facts clearly favor [its] position, not simply

that [it] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.

2015) (emphasis omitted).

                                          II

      The district court did not abuse its discretion in finding that the facts and law

clearly favored DNCL’s position that there was mutual assent between DNCL and

DomainTools to form a contract on DNCL’s terms of use. DNCL conspicuously

displayed its terms of use in response to each of the hundreds of thousands of

information requests DomainTools submitted. There was further evidence before

the district court suggesting that someone at DomainTools must have had actual

knowledge of DNCL’s terms of use, because DomainTools excised the terms of

use appended to the information it received from DNCL before adding it to

DomainTools’ own database.2 Additionally, DomainTools did not deny


2
  On appeal, DomainTools argues that DNCL’s use of “%” symbols to preface its
terms of use sent via Port 43 supports its theory that no DomainTools employee
ever actually saw the terms of use, because DomainTools’ programmers could

                                          3
knowledge of the terms of use in response to DNCL’s cease-and-desist letters.

Accordingly, it was not illogical, implausible, or without support in the record for

the district court to have concluded that the facts and law clearly supported a

finding of mutual assent.

                                          III

      The district court did not abuse its discretion in finding that the terms of use

were clear enough to form the basis of a breach of contract claim. Under

Washington law, even if a contract term “might be ambiguous under some factual

situations,” the term will be enforced if its meaning “is not at all ambiguous” under

the factual circumstances under consideration. Grange Ins. Ass’n v. MacKenzie,

694 P.2d 1087, 1089 (Wash. 1985). A plain reading of both versions of DNCL’s

terms of use show that they clearly prohibited the bulk downloading of 94% of

DNCL’s information registry. It was therefore not illogical, implausible, or

without support in the record for the district court to have concluded that the facts

and law clearly supported a finding that DomainTools breached the terms of use.

                                          IV



have programed its computers to ignore and excise automatically any text prefaced
by a “%” symbols without personally inspecting the WHOIS results. But
DomainTools forfeited this specific argument on appeal by not making it before
the district court in the preliminary injunction proceedings. We “will not consider
arguments that are raised for the first time on appeal.” Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).

                                          4
      The district court did not abuse its discretion in finding that DNCL was

likely to suffer irreparable harm in the absence of a preliminary injunction. The

district court was presented with evidence that DNCL’s customers care deeply

about the privacy of information about themselves; that some DNCL customers

ended their relationship with DNCL because of the publication of the very type of

information that DomainTools obtained from DNCL (and republished in violation

of DNCL’s terms of use); and, that DNCL has taken steps to address its customers’

demand for increased privacy. Accordingly, it was not illogical, implausible, or

without support in the record for the district court to conclude that DNCL was

likely to suffer irreparable harm if it was not able to enforce its terms of use

designed to safeguard user privacy.

                                           V

      The district court did not abuse its discretion in finding that the public

interest supported an injunction. Although the district court was presented with

evidence that DomainTools’ services are used by law enforcement and

cybersecurity professionals to safeguard the public, there was also evidence that

such professionals could access this type of information through alternate channels,

and that in any case, the information DomainTools would be enjoined from

publishing represents a very small fraction of DomainTools’ database. On the

other hand, the district court recognized that the public interest was benefited by


                                           5
safeguarding the privacy of DNCL’s users. Accordingly, it was not illogical,

implausible, or without support in the record for the district court to conclude that

the public interest favored issuance of a preliminary injunction.

                                          VI

      For the foregoing reasons, the district court’s preliminary injunction order is

AFFIRMED.




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