> On Sat, 3 Jul 1999, Karl Auerbach wrote:
>
> > My conclusion is that domain names do come with a bundle of rights and
> > that those rights do constitute sufficient discretionary power over the
> > domain name that they, or at least the rights towards the domain name if
> > not the name itself, could be considered a form of property right.
I wonder precisely what the right the holder has? Using the gTLDs as an example,
it would seem to be based on the contractual arrangement with the registrar and
possibly a third-party beneficiary relationship with the registry. Moreover, that
contractual arrangement is at the sufferance of the registrar so it isn't even
clear whether one's license (assignment, transfer, etc.) would be enforceable
against the registrar/registry's refusal to effect it. Under NSI's policy, for
example, there is no reason why the registrar couldn't refuse to honor transfers
of domain registration.
In Umbro, the court said that a domain name was an intangible intellectual
property interest which could be the subject of a garnishment proceeding. The
explanation was, "There can be little question that domain names are a form of
intellectual property. Domain names can receive trademark protection from the
patent office."
Rather circular reasoning, that. What one gets from a trademark registration of a
domain name is a *trademark* registration, not a domain registration. The
trademark registration neither gives the tm owner the right to use the mark on
goods or services nor the right to acquire a domain registration for it.
At most, a domain registration would seem to be a license of some sort but it
seems more akin to one's status as a beneficiary under a Will prior to the
testator's death. It's an interesting research question.
Diane Cabell
http://www.mama-tech.com
Fausett, Gaeta & Lund, LLP
Boston, MA
