Thursday, 1 September 2011

Domain names as property

They are in California (Kremen v Online Classifieds Inc (2003) 337 F 3rd 1024), and now also in Ontario, although the English courts have been more sceptical (notwithstanding that in OBG Ltd. v. Allan, [2008] 1 A.C. 1 (H.L.), Lord Hoffman for the majority observed at para. 101, “I have no difficulty with the proposition that a domain name may be intangible property, like a copyright or trademark”: that remark appears to be completely obiter). Does it matter? Yes, for one thing because I've seen many agreements in which domain names have been included in the definition of "intellectual property" and the agreement has gone on to give warranties about the intellectual property being owned by one party, and often dealing with the transfer of that class of assets. It's a bad idea to warrant that you own something that probably isn't property, and to promise to transfer something that can't be transferred.

In Tucows.Com Co. v. Lojas Renner S.A.,2011 ONCA 548, the Court of Appeal for Ontario held that a domain name was property and that it was situate in that province, which meant that the Ontario courts had jurisdiction in a trade mark infringment case involving it. Getting over the first hurdle involved the court cosidering cases from a number of jurisdictions along with the academic literature, which they concluded pointed to domain names being a new form of intangible property. It was probably a conclusion they had to reach along the way to the right decision on the case, but it doesn't strike me as entirely convincing - at a philosphical level property can be whatever you want it to be, and of course statute can make something property (as is the case, for example, with copyright and trade marks in this country). But a domain name remains an entry on someone else's database which registration can be re-registered in someone else's name according to the registrar's rules, but which doesn't otherwise look much like property to me.

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