Are domain names service contracts or property rights?


There are several perspectives from which one can give various answers to the question “what are domain names?” “. Originally, the Domain Name System began and continues to be a user-friendly way of addressing a set of machines or a specific machine connected to the Internet. Thus, from a technical point of view, a domain name is simply an address composed of a combination of alphanumerics and symbols to communicate with a machine which also hosts certain services in the form of data and information concerning it.

Indirectly, this machine or its hosted services can also act as a gateway to a network of other services and machines. The above point of view can be considered as the parent point of view from which the business point of view and the legal point of view arise. To begin with, the domain name comes into being via the domain registrar and the holder after having followed the registration process which is done online in a period of minutes consisting of:

  1. Entering the desired domain name to check for availability from the database;
  2. Availability check from database;
  3. If the domain name is available, select a service plan including terms and conditions as well as plan duration and service fees;
  4. Pay online;
  5. Configure the Domain Name Server (DNS) to associate the domain name.

The above is all it takes for anyone to get a domain name from a domain name registrar at any time and day. The question of whether the domain name becomes a contract for services, more than property rights or vice versa, comes next.

Trademarks and owner

A brand is always attached to an entity representing the owner and a quality attached to a product or service. In itself, the brand has no value if it is separated from its goodwill. Each country and its different jurisdictions have their own trademark laws. Can a trademark be used as a domain name? Yes. Can a domain name become a trademark? Not really, because the domain name does not belong to anyone, it is only allowed to be used as the address by the registrar for the holder for a limited time.

Batch of rights

Breaking down some of the various sets of rights enjoyed by trademark and domain name stakeholders. Many of these rights can be transferred between different parties through sales or exchanges.

1) Regulator (ICANN):

  • Licensee
  • Right to Amend UDRP
  • Right to Amend ICANN Bylaws
  • Right to publish root zone server

2) Domain name registrars:

  • Right to change service fees
  • Right to modify the service contract
  • Right to Impose UDRP on Registrant

3) Holder of the domain name:

  • Right to register an available domain name
  • Right not to publish the domain name (no website attached to this domain name)
  • Right to configure the domain name to point to the desired machine
  • Right to control access to the service provided through this domain name
  • Right to use the domain name for advertising purposes
  • Right to sell the domain name

4) Owner of the mark:

  • Right to register an available domain name
  • Right not to publish the domain name (no website attached to this domain name)
  • Right to configure the domain name to point to the desired machine
  • Right to control access to the service provided through this domain name
  • Right to use the domain name for advertising purposes
  • Right to sell the domain name

5) Public:

  • Right of access to the service provided via the domain name
  • Right to provide reviews and comments on the service/website provided through the domain name
  • Right to file a spam report against a domain name

6) Internet intermediaries (ISPs/search engines):

  • Right to authorize access to the website
  • Right to block access to the domain name concerned

Does the “bundle of rights” give domain names contractual service rights or property rights?

The following cases (in chronological order) will provide different angles for answering the question of whether the “bundle of rights” gives domain names contractual rights of service or rights of ownership:

1) Dorer against Arel, 60 F. Supp. 2d. 558 (ED Va.1999).

Rose Marie DORER and Forms, Inc., which were the plaintiffs, brought a trademark infringement action in the jurisdiction of the State of Virginia against Brian AREL, the defendant, for using the domain name “writeword.com” . The court decided to bar the defendant from using the domain name and ordered the defendant to pay the plaintiffs $5,000. But the plaintiffs also wanted to have their share of the profit that might have arisen from the use of the domain name, but the court rejected this claim because there was no lien between the domain name and the defendant’s property. In this case, the domain name was a service contract from NSI.

2) Umbro International c. 3263581 Canada, 48 Va. Cir. 139 (1999).

This case, which at one point turned out to be a cybersquatting case, in which the court had to decide whether a contractual right to use an Internet domain name (in this case “umbro.com”) could be entered with NSI (the Registrar) according to Umbro International. But the court ruled that since this was not a liability but rather a contract for services provided by NSI as registrar to the registrant, there should be no garnishment.

3) Gary Kreman, et al. against Stephen Michael Cohen, et al. No. 01-15899 (9th Cir., July 25, 2003).

This case is one where a forgery took place and the plaintiff was ordered to be compensated by the defendant who walked away without following the order after which the plaintiffs decided to sue the NSI (the Registrar) to get compensation. But since the registrar turned out to be a party with no gain and interest in the domain name, the registrar was saved by its services contract.

4) Barcelona.com Incorporated c. Excelentisimo Ayuntamiento de Barcelona (Town Hall of Barcelona, ​​Spain) 330 F.3d 617, Civ. no. 02-1396 (4th Cir., June 2, 2003).

This case had an international angle with conflicting laws in a specific jurisdiction. ‘barcelona.com’ was ordered to be transferred to ‘Excelentisimo Ayuntamiento de Barcelona’ on the basis of cybersquatting, but the decision was later overturned on the basis of Spanish law applied in a US jurisdiction where the court did not did not find the domain name as infringing the claimed trademark.

5) Audi AG and Volkswagen of America Inc. v. Bob D’Amato 469 F.3d 534, No. 05-2359 (6th Cir., Nov. 27, 2006).

This case was purely a trademark infringement case in which the defendant, without proper authorization, used the Audi trademark and logo on a website with a trademark infringing domain name.

6) Tucows.Com Co. c. Lojas Renner SA, 2011 ONCA 548 (CanLII).

To summarize, I would like to use 2 of the following quotes that say it all.

“A number of courts have, unsurprisingly, found that domain names are contractual rights of service.”

“As someone mentioned in a forum discussion about this, the door swings both ways. The question of whether domain names should be considered property or not, and whether it good or bad, depends on which side you’re on Dave Zan, December 23, 2005 on circleid.com

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Bibliography

1) Dorer against Arel, 60 F. Supp. 2d. 558 (ED Va.1999). Available athttp://www.leagle.com/xmlResult.aspx?xmldoc=199961860FSupp2d558_1557.xml&docbase=CSLWAR2-1986-2006#FR_9>

2) Umbro International v. 3263581 Canada, 48 Va. Cir. 139 (1999). Available athttp://www.courts.state.va.us/opinions/opnscvwp/1991168.pdf>

3) Gary Kremen, et al. against Stephen Michael Cohen, et al. No. 01-15899 (9th Cir., July 25, 2003). Available athttp://www.internetlibrary.com/pdf/kremen-cohen-9th-cir.pdf>

4) Barcelona.com Incorporated c. Excelentisimo Ayuntamiento de Barcelona (Town Hall of Barcelona, ​​Spain) 330 F.3d 617, Civ. no. 02-1396 (4th Cir., June 2, 2003). Available athttp://www.internetlibrary.com/pdf/Barcelona.com-Excelentisimo-Ayuntamiento-4th-Cir.pdf>

5) Audi AG and Volkswagen of America Inc. v. Bob D’Amato 469 F.3d 534, No. 05-2359 (6th Cir., November 27, 2006). Available athttp://www.internetlibrary.com/pdf/Audi%20D’Amato.pdf>

6) Tucows.Com Co. c. Lojas Renner SA, 2011 ONCA 548 (CanLII). Available athttp://www.canlii.org/en/on/onca/doc/2011/2011onca548/2011onca548.pdf> last accessed 02/11/2013 7) Comment by Dave Zan on ‘Is a Domain Name Property?’, December 23, 2003. Available at

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