Domain Name Law Update: Has your domain name been stolen?
What do you do when your domain name has been stolen but you lack the requisite trademark rights to recover the domain via a domain arbitration under Uniform Dispute Resolution Policy (UDRP) or a lawsuit under the Anti-Cybersquatting Consumer Protection Act (ACPA)? Keep in mind that both the elements of the UDRP and the ACPA require that the prior owner of the domain name own a valid, protectable trademark corresponding to the domain name. Moreover, both the UDRP and ACPA require a bad faith intent to profit from the registration and/or use of the domain name. Oftentimes a domain name may be taken by a hacker, a disgruntled employee, a web developer, or the like leaving you, as the one-time registrant and previous owner left wondering what can be done. Domain names are not property like a bicycle, computer, or pair of shoes right?
[Click the link for more information on trademark registration]
More information about how to retrieve a stolen domain name:
Wrong. There is hope. Recent court decisions have held that domain names are property. We have previously discussed the California domain name case that held that domain names are intangible personal property and are subject to claims of conversion. The more recent Ninth Circuit case has held that domain names are property for purposes of conversion by theft or fraud. The finding that domain names are property rights as opposed to contract rights is essential to a conversion claim.
A lawsuit for conversion of property does not require that the prior domain name owner establish trademark rights in the domain name. Rather, conversion generally requires (1) you own or have the right to possess the personal property; (2) the defendant intentionally interfered with your property; (3) the interference deprived you of possession or use of the personal property; and (4) that you were damaged as a result of the interference. Thus, so long as you as the prior domain name owner can establish these elements, you likely have another avenue to redress the stolen domain.
If you were the registrant of, or owned, a domain name, no longer can access the domain name and control it via the domain name manager account or otherwise, and believe you have been the victim of conversion, you should contact a domain name attorney to understand your options. Domain names, like both real and personal property, have value worth protecting and there are options available to get a stolen domain name back.