Well, the first thing I want to point out is when a domain name lease agreement is put together, which essentially allows a domain name owner or registrant to, for a certain period of time and under certain terms and conditions, allow a third party to use that domain in a certain way. When a domain name lease agreement is put together, there’s usually an allowance as to who maintains registration of the domain name. In some instances, the lessor or owner of the domain name originally. In other instances, the registrant becomes the lessee or person who will be using the domain name. As a domain name attorney, I typically would like the lessor to retain registrant ownership of the domain, so that there can’t be what is appearing to be a growing instance of the lessee taking ownership of a domain and not returning it at the end of the actual lease agreement. Essentially, they are holding it hostage in hopes of either extending the lease or affecting an ultimate sale of the domain name from the original registrant to the lessee.
This is Domain Name Attorney Brian Hall with Traverse Legal, PLC, a law firm that represents domain name owners, victims of trademark cybersquatting and those who have been wrongly accused of cybersquatting throughout the United States.
Today, I will be addressing what seems to be a growing issue. And that is when domain name lease agreements go wrong. What can someone do in the instance that they own the domain, they lease it to somebody else, but in the end, the person that’s leasing the domain doesn’t return the domain to them?
Well, the first thing I want to point out is when a domain name lease agreement is put together, which essentially allows a domain name owner or registrant to, for a certain period of time and under certain terms and conditions, allow a third party to use that domain in a certain way. When a domain name lease agreement is put together, there’s usually an allowance as to who maintains registration of the domain name. In some instances, the lessor or owner of the domain name originally. In other instances, the registrant becomes the lessee or person who will be using the domain name. As a domain name attorney, I typically would like the lessor to retain registrant ownership of the domain, so that there can’t be what is appearing to be a growing instance of the lessee taking ownership of a domain and not returning it at the end of the actual lease agreement. Essentially, they are holding it hostage in hopes of either extending the lease or affecting an ultimate sale of the domain name from the original registrant to the lessee.
So, what happens if that occurs? Well, not only should there be a breach of contract because there should be a written lease agreement, but cybersquatting may also be a cause of action that can be alleged and brought in a court of law. Keep in mind, cybersquatting is the unauthorized registration of a domain name that incorporates the trademark of another with bad faith intent to profit. So long as the domain name that is subject to the lease is one that there can be trademark rights in, there is an argument to be made that bad faith is occurring by the continued registration or use by the lessee. They’re profiting from it, and they know that it’s not theirs at the end of a lease agreement. However, where one runs into issues is if they cannot establish that they do have trademark rights in the domain name that is being leased. So, for example, if it’s an entirely generic or merely descriptive name, then it would be difficult to have a cybersquatting cause of action. Regardless, your strongest cause of action will pertain to your actual domain name lease agreement. And for those reasons, it’s critical that a domain name attorney assist you in putting together a domain name lease agreement.
As I talked about before, more and more often these domain name lease arrangements are going wrong for one reason or another. When they do go wrong, both parties usually look to the domain name lease agreement to see what rights and remedies there are available, so it’s absolutely critical to establish the critical terms of a domain name lease agreement. At the very least, the domain or domains should be identified. The monthly or yearly or whatever other timeframe price being paid by the lessee to the lessor should be identified. There should be terms and conditions that relate to how the domain may be used. There should be terms and conditions that relate to what happens upon termination and what actually constitutes a termination. There should be provisions that deal with whether or not there is an opportunity to cure in the event that a breach is alleged. And then ultimately, there should be the proper and fairly typical provisions that deal with indemnification, limitations on liability, and ultimately, whether or not litigation or arbitration may occur and where. So, all of those types of provisions in your domain name lease will make it less likely that you are left at the end of the day without a remedy if something goes wrong.
So, once again, if you run into any issues with a domain name lease agreement, you should speak with a qualified and experienced domain name attorney who can advise you further. And ideally, you will already have been working with one at the time that you entered into the lease and had them help you put together that particular agreement.
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What kind of id-10-t landlord would allow a tenant to change the domain registration into his name? Can you imagine that happening in the brick and mortar world? Nah, me either.
Any landlord that does that, deserves what will undoubtedly follow.
Posted by: Lease? | 2012.06.19 at 09:32 PM