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Journal of Intellectual Property Law & Practice Advance Access published online on October 19, 2005
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpi019
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© The Author (2005). Published by Oxford University Press. All rights reserved.

Article

Is a domain name property?

Sheldon Burshtein 1*
1 Blake, Cassels & Graydon LLP, Barristers & Solicitors and Patent & Trade Mark Agents, Toronto, Ontario, Canada

* To whom correspondence should be addressed.
Sheldon Burshtein, E-mail: sb{at}blakes.com


  Abstract

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.


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