directNIC statement on domains and child porn

Terms of Registrars
It is important to read a registrar's TOS carefully when selecting a domain name service provider, or when performing due diligence in connection with the sale of a business, or lending to a "dot com" business, or collecting on a judgment against a company using a domain name. If the current domain name registrar has unfavorable terms, the registrant can change registrars for a particular domain name. This may be advisable in such cases where the parties are looking for more robust rights in the domain name than available with the current registrar.

For instance, Gandi.net is an Internet domain name registration service located in Paris, France which expressly provides that the registrant "owns" the domain name. There is a useful online service called www.domainnamebuyersguide.com that rates the various Internet domain name registrars. The service rates Gandi.net with five stars (the highest rating) in the "Legal Ranking" category. Among the provisions set forth on gandi.net (at http://www.gandi.net/
faq.html.en visited on October 30, 2000) is the acknowledgment that the registrant "owns" the domain name provided registration fees are paid. The TOS for Gandi.net also provides that the registrant can change registrars at any time without any additional cost.

Another case bearing on the issue of whether a domain name qualifies as property is Kremen v. Cohen. 7 The case is interesting for three reasons: First, it was a dispute over who was master of the domain "sex.com". Plaintiff had alleged that the defendant had forged documents submitted to NSI pertaining to the transfer of the domain name to defendant.

Second, among other things, plaintiff alleged conversion of property. The Umbro court held that the domain name was intangible personal property. 8 The tort of conversion requires something tangible to facilitate the wrongful act of disposing of property. However, the court found that a domain name was not the type of intangible personal property that was associated with documents of title. Thus, the court granted summary judgment, dismissing the conversion claims. 9

Third, the court rejected the rationale of the Virginia Supreme Court in Umbro, and cited favorably the dissent, stating that the right to use domain names exists separate and apart from NSI's various services that make the domain names operational Internet addresses. These services are merely conditions subsequent, the court held. 10


Conclusion
It will be interesting to see how other courts around the country, indeed, around the world, will weigh-in on the issue of domain name ownership. The decisions will depend on the law of the jurisdictions in which the registrars are located and the terms of service agreements of the particular registrars, especially the provisions on ownership and assignability. Perhaps adducing proof as to the portability of domain names as between registrars, combined with the new express transfer provisions of NSI's TOS (version 5.1) will lead the next court to hold that domain names are a new form of intellectual property, capable of being "owned".

*Richard L. Ravin is a member of Hartman & Winnicki, P.C. and is head of his firm's E-Commerce and Intellectual Property Law Group, with offices in New York and New Jersey. He is Co-Chair of the Internet Law Committee of the New York State Bar Association, Intellectual Property Law Section. His e-mail address is [email protected]. ? 2000 Richard L. Ravin

2.3 General Obligations of ICANN. With respect to all matters that impact the rights, obligations, or role of Registrar, ICANN shall during the Term of this Agreement:
2.3.3 not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and not single out Registrar for disparate treatment unless justified by substantial and reasonable cause

3.7.2 Registrar shall abide by applicable laws and governmental regulations.

3.7.7.10 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) where Registrar is located.