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), 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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