Re: [DNS] Can auDA offer and for tender?

Re: [DNS] Can auDA offer and for tender?

From: David Lindsay <d.lindsay§>
Date: Mon, 05 Nov 2001 16:53:56 +1100

The precise characterisation of an interest in a domain name is not clear.
The Rony article you link to is out of date.  Since then, a number of US
decisions have refused to find that registration of a domain name confers a
propriety interest in the registrant, including: NSI v Umbro International
Inc 529 SE 2d 80 (1999); Dorer v Arel 60 F Supp 2d 558 (1999); Kremen v
Stephen Michael Cohen 99 F Supp 2d 1168 (2000); and, most recently, Zurakov
v (Supreme Court of New York, 25 July 2001, case no
600703/01).  On the other hand, the US Anticybersquatting Consumer
Protection Act of 1999 does provide for actions in rem, which are usually
only available for interests in the nature of property rights.  This
suggests that, under US law, domain names may be considered to be property
interests for some purposes but not for other purposes (in which case
registration confers contractual rights only).  In Australia, the courts
have historically been extremely reluctant to recognise new forms of
property, leaving this to legislation.  From memory, this was also the
reasoning in at least one of the US decisions.   

>There is authority in the
>United States for the proposition that domain names are a species of
>property.  Whilst
>the law of the United States is not automatically applied in this
>country, it is generally considered to be of persuasive value in
>Australian courts.
>If the right to the administration of 2LDs is proprietary in nature,
>then auDA must be very certain of its entitlement to vest those rights
>in third parties before proceeding with its current request for tender. 
>Not only auDA but also tenderers should be vigilent in ensuring that an
>unbroken chain of title exists.  If it were to be found by a court of
>law that domain names were a species of intangible property which could
>only effectually be dealt with with in compliance with RFC 1591, it
>might well also be found that auDA, having not complied with those
>procedures, never came into possession of the property with which it is
>purporting to deal.

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Received on Mon Nov 05 2001 - 06:16:46 UTC

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