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Is a Domain Name Property?

In an article by Sheldon Burshtein, published in the Journal of Intellectual Property Law & Practice, the author examines the view on whether domain names are properties. The following is the abstract of this article:

Legal context. Domain names have become increasingly valuable assets, in some respects more valuable than trade marks. A domain name may identify not only the source of the goods, services, business or information, but also the virtual location of the source, much as an address or telephone number does. However, there is still a significant unresolved issue as to whether a domain name is a form of intangible property or merely a contractual right. Resolution of this issue is important for commercial transactions affecting domain names and for legal proceedings and remedies relating to them.

Key points. Domain names have been analogized by courts to addresses, patents, trade marks, and even by one writer to cattle. However, in this author's view, the best way to characterize the legal status of a domain name is by analogy to a telephone number. Although United States appellate authority suggests that a domain name is a form of intangible intellectual property, it is submitted that the better, but not judicially clear or consistent, view is that a domain name is not property. This position reflects the practice in Canada where, in registering a .ca domain name, the registrant agrees, as a contractual condition of registration, that it acquires no property right in the domain name.

Practical significance. The authorities in this area are still not clear. Until this issue is resolved, whether globally or on a country-by-country basis, the prevailing uncertainty will inhibit commercial transactions involving domains, such as their transfer and their value for the purposes of securitisation.

Full article is available online at the Journal of Intellectual Property Law & Practice. Sheldon Burshtein has also authored the book, "Domain Names and Internet Trade-mark Issues: Canadian Law and Practice", which was recently published by Carswell.

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Re: Is a Domain Name Property? terastra  –  Dec 09, 2005 2:21 AM PDT

A Domain Name is the registrant's property.

A disappointing article by Mr. Burshtein of Blake, Cassels and Graydon of Totonto,who is trying to tell us that Domain Names should not be regarded as property.

I was looking forward to find a solid argumentation in favour of that extremely registrar-friendly viewpoint, but I could find nothing beyond that "the better, but not judicially clear or consistent view
is that a domain name is *not* property" repeated at the beginning and the end of the article plus some lame comparison with telephone numbers.

The author was kind enough to quote the actual argumentation used by a US appellate court to argue that they *are* property, because

1.they represent an interest of precise definition

2.they are subject to exclusive possession or control

3.a registrant has a legitimate claim to exclusivity

(Kremen vs. Cohen)

but then completely failed to refute any of these considerations.

The court's decision was based on granting the registrant protection against the tort of conversion (theft ,really) which is part of the general idea that property ought to be protected by the justice system.

Consider that the author himself admits that "Domain Names may be greatly valued by their *owners*".

Owners without property?

Consider that even the registrars on their websites speak of the benefits of *owning* your own domain.
Consider the economic need to protect the investment made in building a web presence
with the measurable asset of web traffic associated with a Domain Name.

The .com registry might like to *own* all the Domain Names in its database, but no court in the US is going to follow Mr Bershtein's "better view".

That the Canadian .ca registry has gotten away with the coup that its registrants are forced to sign away their property rights is only possible because businesses or individuals who want their Canadian identity have no choice but to deal with that monopoly.

The Canadian registry goes so far as to deny the registrants even the right to encumber his domain or grant it as security, with Mr Bershtein applauding that as a result the registrant "clearly obtains no property right in the domain name" by "virtue" of the contractual terms underlying the registration.

Why the Canadian Domain registration contract would be worth following remains unclear.

The historic development of rights in any kind of economic asset (land is a good example) has always been towards ownership and property, allowing for credit financing and the granting of security.

Only Marxism has attempted to turn the development in the opposite direction.

Joop Teernstra LL.M.
icannatlarge.com

Re: Is a Domain Name Property? Daniel R. Tobias  –  Dec 22, 2005 7:38 PM PDT

Is a domain name property or a contractual arrangement?  Actually, it's both.  A contractual arrangement can itself be a property that can be bought, sold, or traded… it's done all the time with baseball players, for instance.  A player can't actually be literally sold to another team — since the outlawing of slavery, human beings haven't been sellable property — but the contract between the player and the team can be sold or traded to another team.  Domain names are in a similar condition.

Re: Is a Domain Name Property? Peter David Hurley  –  Dec 23, 2005 7:24 AM PDT

Hi

In the UK we can sell unique vehicle ID plates also the UK Goverment do so, so there is a relationship between ownership of ID plates and ownership of a URL domain name.

Peter

Re: Is a Domain Name Property? Dave Zan  –  Dec 23, 2005 7:57 AM PDT

As someone mentioned in a forum discussion about this, the door swings both ways. Whether domain names should be considered property or not, and whether it's good or bad, depends on what side you're on.

Re: Is a Domain Name Property? terastra  –  Dec 24, 2005 2:41 AM PDT

Yes, quite so.
If you are on the side of the registries it becomes very interesting to deny anyone else the property rights that you could not get for yourself.

In monopoly contracts of adhesion this is tempting to try.
I heard registries bending over backwards to argue that their registrants' rights are akin to the rights of the passengers of an airplane! (certainly not "owners" of any part of their transportation contract)

I believe though, that ultimately the non-ownership by the registrant idea is poisoned bait for TLD registries.

With ownership rights also come owners' responsibilities.

I don't think the dot-com people would like to accept responsibility of all that is done with .com registrations.

Registration contracts could be much better balanced if they took this into consideration.

In the longer run it will be good business too.

-joop-

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