Journal of Intellectual Property Law & Practice, Vol. 1, No.
1 ARTICLE
Is a domain name property?
Sheldon Burshtein*
Domain names have become increasingly valuable
assets, in some respects more valuable than trade
marks. A domain name may identify not only the
source of the goods, services, business, or informa-
tion, but also the virtual location of the source,
much as an address or telephone number does. How-
ever, there is still a significant unresolved issue as to
whether a domain name is a form of intangible prop-
erty or merely a contractual right. Resolution of this
issue is important for commercial transactions affect-
ing domain names and for legal proceedings and
remedies relating to them. Although US appellate
authority holds that a domain name is a form of
intangible intellectual property,1 it is submitted that
the better, but not judicially clear or consistent,
view is that a domain name is not property.2 This
position is reflected in the .ca registry, where, in regis-
tering a domain name, the registrant agrees, as a con-
tractual condition of registration, that it acquires no
property right in the domain name.3
1. Characterization of domain
names
A domain name is a character string that, when entered
on a browser, enables one to download material from a
remote server associated with the Internet protocol
(IP) address to which the domain name resolves. The
registrant can cause the domain name to resolve to a
particular IP address and can elect to change the IP
address to which the domain name resolves. This
functionality is common to all domain names and is
the defining characteristic of a domain name.4
* Blake, Cassels & Graydon LLP, Barristers & Solicitors and Patent & Trade
Mark Agents, Toronto, Ontario, Canada.
E-mail: sb@blakes.com.
1 Kremen v Cohen 67 USPQ 2d 1502 (CA 9 2003), reversing Kremen v Cohen
99 F Supp 2d 1168 (ND Cal 2000), question whether a domain name is the
kind of intangible property that can support a state law claim for conver-
sion certified 65 USPQ 2d 1733 (CA 9 2003), refused High Court of
California, unreported, 25 February 2003.
2 Umbro International Inc v 3263851 Canada Inc 529 SE 2d 80 (ED Va 2000);
Dorer v Arel (1999) 60 F Supp 2d 558 (ED Va 1999); Lockheed Martin Corp
v Network Solutions Inc 194 F 3d 980 (CA 9 1999); and Wornow v Register.
Com Inc, unreported, 2004 NYSlipOp 04776, Appellate Division, First
Department, 8 June 2004.
Ó The Author (2005). Published by Oxford University Press. All rights reserved.
59
 Domain names may be greatly valued by their
owners and large sums of money may be paid
for them, but that does not of itself mean that
they are ‘property’.
 While there is some authority under United
States law to suggest that domain names are
property, it is submitted that the better view is
that they are not property but are instead
merely contractual rights.
 Domain name registration authorities have
adopted different policies when dealing with
proprietary issues relating to them.
 Some guidance as to the legal nature of domain
names may be derived from a comparison with
the legal status of telephone numbers.
In attempts to answer the fundamental question of
whether a domain name registration is property or
merely a contractual right flowing from a registration
agreement, domain names have been analogized by
courts to addresses,5 patents,6 trade marks,7 and
even by one writer to cattle.8 However, in this
author’s view, the best way to characterize the legal
status of a domain name is by analogy to a telephone
number. A sequence of electronically generated sig-
nals, assigned by the operator of a telephone utility
to a subscriber, enables the subscriber’s instrument
to be contacted for sound, text, and graphics from
another instrument in the network. An alphanumeric
telephone number corresponds to the sequence of
electrical signals needed to contact the instrument.
3 CIRA Registrant Agreement s 7.2; see also CIRA Registrar Agreement
s 4.2(k), www.cira.ca.
4 National A-1 Advertising Inc v Network Solutions Inc 121 F Supp 2d 156
(DNH 2000) and Lockheed Martin Corp v Network Solutions Inc (n 2).
5 eg Panavision International LP v Toeppen 141 F 3d 1316 (CA 9 1998).
6 Umbro International Inc v 3263851 Canada Inc (n 2).
7 Dorer v Arel (n 2).
8 C Oppedahl ‘Remedies in Domain Name Lawsuits: How Is a Domain
Name Like a Cow?’ (1997) 15 John Marshall Journal of Computer and
Information Law 437.
60 ARTICLE
A subscriber can ask the telephone company to asso-
ciate the telephone number to a specific location.
In some respects, domain names are even more
akin to toll-free vanity telephone numbers9 such as
1-800-HOLIDAY. The analogy is appropriate because
a domain name is a mnemonic for the unwieldy ini-
tial portion of a numerical address. The mnemonic
device is often related to a business name or a trade
mark and may be the basis of a substantial advertising
investment. Each represents a scarce public resource
in that the unique nature of vanity numbers and
domain names means that only a limited number of
each is available. Finally, the continued right to use
a vanity number or a domain name is dependent on
the continuation of services from the telephone car-
rier or domain name registry. One of the first United
States domain name decisions provides some valida-
tion for this characterization.10 The court analogized
Internet domain names to telephone number
mnemonics. Other US decisions have followed this
approach.11 US courts have consistently held that
telephone subscribers have no proprietary rights in
the numbers assigned by telephone companies.12
.............................................................
The better, but not judicially clear or
consistent, view is that a domain name is not
property
.............................................................
The fact that a telephone number enables a person
to contact a predesignated instrument does not
preclude registration of the number as a trade mark,
if it also distinguishes the goods or services of the
9 Network Solutions Inc v Umbro International Inc 529 SE 2d 80 (ED Va
2000).
10 MTV Networks v Curry 867 F Supp 202 (SDNY 1994).
11 eg Network Solutions Inc v Umbro International Inc (n 9); Dorel v Arer (n 2);
and Lockheed Martin Corp v Network Solutions Inc (n 2).
12 eg Jahn v 1-800-Flowers.com Inc 284 F 3d 807 (CA 7 2002); Re US Financial
Corp Inc 594 F 2d 1275 (CA 9 1979); Dial Temporary Help Services Inc v
Shrock 946 F Supp 847 (D Ore 1996); Burris v South Central Bell Telephone
Company 540 F Supp 905 (SD Miss 1982); Southwestern Bell Yellow Pages v
Wilkins 920 SW 2d 544 (Mo Ct App 1996); and First Central Services Corp v
Mountain Bell Telephone 623 P 2d 1023 (NM Ct App 1981).
13 Pizza Pizza Ltd v Registrar of Trade Marks (1989) 26 CPR (3d) 355 (Federal
Court of Appeal).
14 ibid.
15 ibid.
16 Canren Systems Corp v British Columbia Telephone Co (1983) 74 CPR (2d)
48 (British Columbia Supreme Court).
Journal of Intellectual Property Law & Practice, 2005, Vol. 1, No. 1
subscriber from those of others.13 However, in Can-
ada the traditional trade mark law requirement of
distinctiveness means that a telephone number must
distinguish the source of goods or services if it is to
be entitled to trade mark protection.14 Over time a
telephone number may, through use as a trade mark
to distinguish goods, services, or business activities,
acquire trade mark significance to the point where it
can be registered15 or where rights can be enforced at
common law.16 The same is true for a domain name.
In registering a domain name, a registrant con-
tracts for a defined period of time for the right to dir-
ect how a domain name is resolved. The registrant
receives only the conditional contractual right to the
exclusive association of the registered domain name
with a given IP address for the term of the registra-
tion.17 The registrant does not, through its contract
with a domain name registry, obtain any right against
any other person, other than the de facto consequent
exclusivity resulting from the fact that the identical
domain name may not be registered or used by
another person during the term of the registration.
No right exists separate and apart from the contract
with the registry.18 In this author’s view, any ‘owner-
ship’ of a domain name is therefore merely a contrac-
tual right, incidental to registration, to direct how a
character string will resolve when a user enters the
name on a browser.19
2. United States
In the United States, lower courts have generally,20
but not uniformly,21 declined to treat a domain
name as property. An intermediate appellate division
17 Umbro International Inc v 3263851 Canada Inc (n 2); Dorer v Arel (n 2);
Lockheed Martin Corp v Network Solutions Inc (n 2); and Wornow v
Register.Com Inc (n 2).
18 Umbro International Inc v 3263851 Canada Inc (n 2); Dorer v Arel (n 2);
Lockheed Martin Corp v Network Solutions Inc (n 2); Wornow v
Register.Com Inc (n 2); and Size Inc v Network Solutions Inc 255 F
Supp 2d 568 (ED Va 2003).
19 J Hines Jr ‘Anatomy of a Domain Name: Property, Contract or What?
[2001] World E-Commerce & IP Report 3.
20 Umbro International Inc v 3263851 Canada Inc (n 2); Dorer v Arel (n 2);
and Lockheed Martin Corp v Network Solutions Inc (n 2).
21 Caesars World Inc v Caesars-Palace.com 112 F Supp 2d 502 (ED Va 2000),
contempt motion 112 F Supp 2d 505 (ED Va 2000); and Online
Partners.com Inc v Atlanticnet Media Corp 2000 US Dist LEXIS 783,
101242 (ND Cal 2000).
Sheldon Burshtein · Is a domain name property?
has also held that a domain name is not a property
right.22 In these decisions, for the most part, reliance
has been placed on the telephone number analogy.
Some decisions acknowledge that telephone numbers
constitute unique property interests. However, in
what was until recently the leading case on the ques-
tion of whether a domain name is property,23 the
court chose to follow a line of cases holding that tele-
phone numbers are neither the property of, nor in the
possession of, telephone subscribers. Instead the court
characterized a domain name as the product of a con-
tract.24 It has been held that, in the .com registry, a
domain name registrant only has a contract with its
registrar, the registrant’s rights being governed
exclusively by the service agreement with the regis-
trar.25 Courts have declined to order the seizure of a
domain name, saying that a domain name is not
property.26 It has also been held that the improper
transfer of a domain name cannot constitute the
tort of conversion because a domain name is not
property.27
However, several appellate decisions may have
clouded the issue. In Porsche Cars North America v
Porsche.Net,28 the Fourth Circuit interpreted the in
rem jurisdiction provisions of the Anticybersquatting
Consumer Protection Act (ACPA).29 The defendant
challenged the in rem jurisdiction of the ACPA30 to
escape the application of the statute on the basis
that a domain name is only an address and not prop-
erty. The court relied on an earlier decision, unrelated
to the ACPA, which rejected the position that a
domain name is nothing more than an address.
That decision, which was rendered under the pre-
ACPA Lanham Act, said only that a domain name
was not merely an address in the context of the court
determining whether the defendant was using the
domain name as a trade mark.31 The court then
went on to say that ‘Congress plainly treated domain
names as property in the ACPA’ (emphasis added).32
22 Wornow v Register.Com Inc (n 2).
23 Umbro International Inc v 3263851 Canada Inc (n 2).
24 ibid.
25 Zukarov v Register.com, unreported, no 600703/01 (SCNY 25 July 2001).
26 Umbro International Inc v 3263851 Canada Inc (n 2); and Dorer v
Arel (n 2).
27 Free.net Soln Bhd v Freel Networks Inc, unreported, no 00-CV-1101 (WD
Wash 22 September 2000).
28 64 USPQ 1248 (CA 4 2002); see also Harrods Limited v Sixty Internet
Domain Names 64 USPQ 1225 (CA 4 2002).
ARTICLE 61
However, the court did not hold that a domain name
is property.
The ACPA, which authorizes an in rem civil action
against a domain name, may suggest that a domain
name is intangible property, since an in rem action
is traditionally brought to determine the status of
specific property.33 However, the ACPA does not
address the relationship between a domain name
registration and the contract with the registry. Fur-
ther, while the ACPA provides for an in rem action,
the legislation does not state that a domain name is
property. Since a domain name registration does
not exist separately from the registrant’s contract, it
is submitted that no property right attaches to the
domain name or to the registration on its own.34
The ACPA merely permits the availability of in rem
jurisdiction because of the difficulties in obtaining
in personam jurisdiction over cyberpirates. This is
made clear by the fact that one of the conditions for
in rem jurisdiction under the ACPA is that a trade
mark owner be unable either to obtain in personam
jurisdiction over, or to locate, the defendant.35 Thus
the ACPA’s in rem jurisdiction is merely a procedural
technique. It is submitted that Porsche merely stands
for the proposition that, for ACPA purposes, a
domain name is subject to in rem jurisdiction as if
it were property.
.............................................................
The continued right to use a domain name is
dependent on the continuation of services
from the domain name registry
.............................................................
However, in perhaps the most publicized domain
name lawsuit to date, Kremen v Cohen,36 the Ninth
Circuit held that a domain name is a form of intan-
gible property because (i) it represents an interest of
precise definition, (ii) it is subject to exclusive posses-
sion or control, and (iii) a registrant has a legitimate
29 Lanham Act 15 USC 1125(d).
30 ibid 1125(d)(2)(c).
31 Panavision International LP v Toeppen (n 5).
32 Porsche Cars North America v Porsche.Net (n 28).
33 Caesars World Inc v Caesars-Palace.com (n 21).
34 Umbro International Inc v 3263851 Canada Inc (n 2).
35 15 USC 1125(d)(2)(A)(ii).
36 Kremen v Cohen (n 1).
62 ARTICLE
claim to exclusivity. The court therefore held that a
domain name is subject to the tort of conversion
under California law, even though it is intangible
property.37 The decision must, though, be considered
in its context. The plaintiff sued to regain control
of the extremely valuable sex.com domain name
from the registrant, an ex-convict, who
misappropriated the domain name registration by
sending a forged letter to the registrar, NSI. The trial
court rejected the claim, holding that the improper
transfer of a domain name cannot constitute the
tort of conversion because a domain name is not
property.38 On appeal, the court held that a domain
name is a form of intangible property, ordering the
defendant to transfer the domain name registration
and awarding damages against NSI.39 The plaintiff
subsequently settled against VeriSign, the successor
to NSI.40 This decision followed an earlier one in
the same circuit in which, on a jurisdictional ques-
tion, the court assumed that a domain name could
be converted.41
In the United States, therefore, the current but not
uniform view appears to be that a domain name is a
form of intangible property which is protected by
the tort of conversion because (i) a domain name
represents an interest of precise definition, (ii) a
domain name is subject to exclusive possession of
control, and (iii) a registrant has a legitimate claim
to exclusivity in a domain name.42 However, a more
recent intermediate appellate decision has held that
a domain name is not personal property unless
registered as a trade mark.43
3. Canada
Canadian courts have not yet fully or properly con-
sidered the question, but they have equally clouded
the issue. The Ontario Superior Court has suggested
in obiter comments that a domain name, while
37 ibid.
38 Kremen v Cohen 99 F Supp 2d 1168 (ND Cal 2000); see other decisions
at n 1.
39 Kremen v Cohen (n 1).
40 D Kawamoto ‘Sex.com, VeriSign Settle Domain Name Suit’ cnetnews.com
20 April 2004.
41 Bancroft & Masters Inc v Augusta National Inc 223 F 3d 1084 (CA 9 2000).
42 Kremen v Cohen (n 1).
43 Wornow v Register.Com Inc (n 2).
Journal of Intellectual Property Law & Practice, 2005, Vol. 1, No. 1
difficult to characterize as real or personal property,
could be characterized as intangible property.44 In
Easthaven Ltd v Nutrisystem.com Inc 45 the plaintiff,
a Barbadian corporation, was the registrant of the
domain name sweetsuccess.com. The domain name
registrar, incorporated in Delaware, had its head
office in Ontario. The defendant, incorporated in
Delaware and having its principal place of business
in Ontario, owned a family of SWEET SUCCESS
trade marks. The plaintiff offered to sell the domain
name to the defendant. The defendant sued the
plaintiff and the registrar in Pennsylvania, where the
trade mark owner obtained a preliminary injunction
against transfer of the domain name. The plaintiff
then sued in Ontario. The action against the registrar
was discontinued when it placed the domain name
‘on hold’. The defendant moved to dismiss the
Ontario action. The court stayed the Ontario action,
suggesting that a domain name, while difficult to
characterize as real or personal property, could be
characterized as intangible property.
.............................................................
Improper transfer of a domain name cannot
constitute the tort of conversion because a
domain name is not property
.............................................................
The Federal Court has said that it is not clear that
intellectual property is ‘property’ within the meaning
of its Rule 377 of the Federal Court Rules 199846 or
that the rule may be applied to support an order to
preserve intellectual property rights.47 In Molson
Breweries, A Partnership v Kuettner 48 the plaintiff,
owner of the trade marks MOLSON and MOLSON’S,
brought an action for trade mark infringement
against the defendant, who had registered the domain
names molson.com and molsonbeer.com. The court
dismissed the plaintiff’s motion seeking leave to
deposit a declaration from the registrar tendering
44 Easthaven Ltd v Nutrisystem.Com Inc (2001) 55 OR 3d 334 (Ontario
Superior Court of Justice); additional reasons at 2001 CarswellOnt 3431
(Ontario Superior Court of Justice) and 2001 CarswellOnt 3693 (Ontario
Superior Court of Justice).
45 ibid.
46 Federal Court Rules 1998 SOR 98/106, as amended.
47 Molson Breweries, A Partnership v Kuettner (1999) 3 CPR (4th) 479 (Federal
Court, Trial Division).
48 ibid.
Sheldon Burshtein · Is a domain name property?
control over the use and registration of the
domain names into the registry of the court. After
determining that the motion was brought pursuant
to Rule 377, the court concluded that it was not clear
that intellectual property is ‘property’ within the
meaning of Rule 377 or that the rule may be applied
to support an order to preserve intellectual property
rights. Further, the plaintiff failed to meet the test
applicable under Rule 377, which is the same test as
for an interlocutory injunction. While some may sug-
gest that the court implicitly considered that a
domain name is property, the court did not so hold.
At most, the court effectively said that, even if a
domain name might be intellectual property, it was
not clear that Rule 377 applied.
With respect to domain names registered in the .ca
registry, the Canadian Internet Registration Authority
(CIRA) Registrant Agreement provides that the regis-
trant expressly agrees that the registration of a
domain name does not create any proprietary right
for the registrant, a registrar, or any other person, in
any name used as a domain name or in any registra-
tion, and that the entry of a domain name in the
WHOIS database of the CIRA registry is not to be
construed as evidence of ownership of the registered
domain name.49 The registrant must not transfer or
purport to transfer a proprietary right in any registra-
tion or grant or purport to grant as security, or in any
other manner encumber or purport to encumber, any
domain name registration.50 Thus, at least in the .ca
49 Registrant Agreement ss 7.2, 4.2(k).
50 Registrant Agreement ss 7.2, 4.2(k).
ARTICLE 63
registry, by virtue of the contractual terms underlying
a registration, the registrant of a domain name clearly
obtains no property right in the domain name or its
registration.
4. Other jurisdictions
A German court has held that a domain name is pro-
perty granted pursuant to a contract, but that the right
to use the property is subject to certain obligations
and duties which are subject to trade mark law.51
5. Conclusion
The decisions in the United States and Canada illus-
trate that there is still a significant unresolved issue
as to whether a domain name is a form of intangible
property or merely a contractual right. Resolution of
this issue is important for commercial transactions
affecting domain names and for legal proceedings
and remedies relating to them. Although there is Uni-
ted States appellate authority to the effect that a
domain name is a form of intangible intellectual
property,52 it is submitted that the better, but not
judicially clear or consistent, view is that a domain
name is not property. However, despite the number
and value of domain names, this issue is not likely
to be settled for a while, and even then may be
resolved differently in each jurisdiction.
doi:10.1093/jiplp/jpi019
Advance Access Publication 19 October 2005
51 Paeffgen GmbH v ad-acta Datenschulz und Recycling GmbHBundesverfas-
sungsgericht no 1 BVR 1306/02 (24 November 2004).
52 Kremen v Cohen (n 1).