You May Not Necessarily Be The Master Of Your Domain

The ability to associate goods and services with a specific domain name can make or break a business, so much so that companies are still willing to fork over millions to purchase domain names. And although you may consider yourself lucky to have registered a catchy domain name that drives plenty of traffic to your website, query whether the domain name is actually your property; not only do companies that provide domain name registration services frequently take the position that domain names are not property, but at least one recent case law suggests this as well.

The concept that domain names can be "owned" as intangible personal property seems reasonable on its face, particularly given the close relationship between domain names and trademarks, the latter of which historically have been considered property. Domain names frequently contain a registrant's trade name or trademark associated with the registrant's goods or services. Moreover, the Anticybersquatting Consumer Protection Act of 1999 (15 U.S. Code § 1125) permits a trademark owner to pursue an in rem action against a domain name that violates the mark owner's rights, and the availability of an in rem action implies that the Act treats domain names as property.

On the other hand, domain names and trademarks are distinguishable. For example, certain prerequisites for federal trademark registration, such as proof of the mark being used in interstate commerce to identify a specific type of good or service, do not apply to domain name registrations (which instead are registrable on a first-come, first-served basis). And although similar marks used by different companies can potentially co-exist depending on territorial and other factors, each registered domain name is unique, at least with respect to the applicable top-level domain. (Given that uniqueness, and the ability of domain names to "point" Internet users to information sources, domain names have been likened to toll-free "vanity" telephone numbers; like domain names, vanity telephone numbers that include a company's name or mark are, in a sense, tools that can help drive traffic to the company's offerings.)

On November 7, 2013, in Alexandria Surveys, LLC v. Alexandria Consulting Group, the U.S. District Court for the Eastern District of Virginia held that under Virginia law, domain names, like telephone numbers, are not property. In Alexandria, two competitors, Alexandria Surveys LLC ("ASL") and Alexandria Consulting Group...

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