A Domain Name is Property. A Domain Name is Not Property.

Business people are sometimes seen to roll their eyes when they ask their lawyer a straighforward question, and the lawyer pauses and replies “Well… it depends…”

In our earlier post (here and here), we reviewed the Canadian decision in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, which stands for the proposition that a domain name is intangible personal property. The court pointed to an emerging consensus among other courts that domain names are a form of property. This decision was denied leave to appeal to the Supreme Court of Canada in Lojas Renner S.A. v. Tucows.Com Co., 2012 CanLII 28261 (SCC) which seems to settle the matter.

In the United States, courts have also come to the same conclusion that a domain name is personal property, for example in (Bosh v. Zavala (C.D. Cal. Sept. 24, 2009) and Kremen v. Cohen, 325 F. 3d 1035 (US Ninth Circuit Court of Appeals).

A recent US decision out of Virginia (In re Alexandria Surveys Int’l, LLC, 13-CV-00891 (E.D. Va. Nov. 7, 2013)) has come to a different conclusion in a bankruptcy matter. In this case, the court decided that “a domain name registrant acquires the contractual right to use a unique domain name for a specified period of time . . . a domain name is not personal property but rather ‘the product of a contract for services.’” [Emphasis added]

Many Canadian companies have intangible assets like domain names on both sides of the border, particularly in cases where branch offices or subsidiaries carry on business in both countries. While Canadian law appears to have some clarity on this topic, the Alexandria Surveys decision in the US does raise questions – questions that are compounded in light of the fact that intangible assets like domain names are designed to be used without regard to any particular country or jurisdiction.

Calgary – 07:00 MST

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