If you’ve got a really good memory, you remember that we talked about issues regarding the owning of your website back in August 2015 (here’s link to jog your memory: http://buchanan-labs.com/i-paid-for-it-so-i-own-it-right-well/ ). I promised then that we’d discuss “owning” your domain name (e.g. knowingstartups.com), and that’s what this blog entry is all about.
First off, at its core, a domain name is really just a pointer…
So this blog exists in the domain knowingstartups.com; .com is one of the original generic top level domains (gTLD); you may be familiar with others such a .net .org .edu .mil; there are now many other gTLDs (some with additional restrictions such as .info, .biz, .pro, .coop, .museum and many many others). One of the key elements of the domain name is that it “points” to the internet protocol (IP) address so that your browser or other software can locate the appropriate servers or software via the Internet. In other words, when you type “google.com” the alpha numeric domain name information is translated into a numeric address used to route the information to and from the appropriate domain.
You can think of this IP address as roughly analogous to a phone number, in that just as the phone system uses a series of numbers to connect, so does the Internet.
For example, if you were to “look up” the current IP addresses of “google.com” via a lookup service (such as http://www.ipmarker.com/domain-to-ip-lookup/ ) here’s what you’d find:
As it happens, a particular IP address may host multiple domains (and that is the case if you look up the IP address for knowingstartups.com, as using that IP address will lead you to the site of one of our hosting providers), but for google.com, if you enter 220.127.116.11 into your browser you will end up at the google.com home page.
“OK, so let’s push the phone number analogy a little further…is there a phone book for domain names?”
Why, yes, there is. And for our younger readers, a “phone book” was a large book containing names and street addresses cross indexed with phone numbers (landlines, back in the day). The Internet’s domain name system (DNS) uses distributed “name servers” to provide the lookup for google.com and translation to the IP address 18.104.22.168.
“So if I own the domain cnn.com then I’m listed in the DNS name servers?”
Nope. If you own cnn.com, then you, as the “registrant” of the domain name, control which “name servers” contain the IP address for your domain. And, you also have the corresponding power to change those name servers and/or the IP address for your domain.
“Alright, where does that information reside?”
In the databases maintained and updated by the various domain name registrars using the WHOIS protocol. For example, one of the registrars for .com is Network Solutions (there are many, many others such as godaddy.com, namecheap.com, etc.).
Let’s see what’s in the WHOIS for google.com via http://www.networksolutions.com/whois/index.jsp
Domain Name: google.com Registry Domain ID: 2138514_DOMAIN_COM-VRSN Registrar WHOIS Server: whois.markmonitor.com Registrar URL: http://www.markmonitor.com Updated Date: 2015-06-12T10:38:52-0700 Creation Date: 1997-09-15T00:00:00-0700 Registrar Registration Expiration Date: 2020-09-13T21:00:00-0700 Registrar: MarkMonitor, Inc. Registrar IANA ID: 292 Registrar Abuse Contact Email: firstname.lastname@example.org Registrar Abuse Contact Phone: +1.2083895740 Domain Status: clientUpdateProhibited (https://www.icann.org/epp#clientUpdateProhibited) Domain Status: clientTransferProhibited (https://www.icann.org/epp#clientTransferProhibited) Domain Status: clientDeleteProhibited (https://www.icann.org/epp#clientDeleteProhibited) Domain Status: serverUpdateProhibited (https://www.icann.org/epp#serverUpdateProhibited) Domain Status: serverTransferProhibited (https://www.icann.org/epp#serverTransferProhibited) Domain Status: serverDeleteProhibited (https://www.icann.org/epp#serverDeleteProhibited) Registry Registrant ID: Registrant Name: Dns Admin Registrant Organization: Google Inc. Registrant Street: Please contact email@example.com, 1600 Amphitheatre Parkway Registrant City: Mountain View Registrant State/Province: CA Registrant Postal Code: 94043 Registrant Country: US Registrant Phone: +1.6502530000 Registrant Phone Ext: Registrant Fax: +1.6506188571 Registrant Fax Ext: Registrant Email: firstname.lastname@example.org Registry Admin ID: Admin Name: DNS Admin Admin Organization: Google Inc. Admin Street: 1600 Amphitheatre Parkway Admin City: Mountain View Admin State/Province: CA Admin Postal Code: 94043 Admin Country: US Admin Phone: +1.6506234000 Admin Phone Ext: Admin Fax: +1.6506188571 Admin Fax Ext: Admin Email: email@example.com Registry Tech ID: Tech Name: DNS Admin Tech Organization: Google Inc. Tech Street: 2400 E. Bayshore Pkwy Tech City: Mountain View Tech State/Province: CA Tech Postal Code: 94043 Tech Country: US Tech Phone: +1.6503300100 Tech Phone Ext: Tech Fax: +1.6506181499 Tech Fax Ext: Tech Email: firstname.lastname@example.org Name Server: ns2.google.com Name Server: ns3.google.com Name Server: ns1.google.com Name Server: ns4.google.com DNSSEC: unsigned URL of the ICANN WHOIS Data Problem Reporting System: http://wdprs.internic.net/ >>> Last update of WHOIS database: 2016-05-16T00:07:03-0700 <<<
That’s a lot of information, so let’s focus on just a couple of items. The entity that has ‘registered’ the google.com domain name (the Registrant) is
Registrant Name: Dns Admin Registrant Organization: Google Inc.
The registrar Google used is markmonitor.com and you can see various information controlled by the Registrant such as Registrant Email, Admin Email, Technical Email and the specified name servers where the google.com IP address can be found.
The “Registrant” is the effective owner of the domain name, as the Registrant controls (and can change) all of the foregoing information through the registrar, and is responsible for renewing the domain name registration with the registrar (and paying the applicable registration fees). Google itself had a briefly embarrassing situation in 2015 when it lost control of google.com for a minute (quickly rectified: http://www.businessinsider.com/this-guy-bought-googlecom-from-google-for-one-minute-2015-9 ).
“So as long as I am the registrant for my startup’s domain name, all is good?”
Well, the best practice here is to make sure your startup entity itself, and not any individual founders, IT providers or consultants who may have set up your domain are the registrant. You want to make sure that the company/entity is the registrant and that the applicable account with the registrar is controlled by the company/entity so that regardless of changes in personnel or vendors, the domain name registration remains with the company.
“How do I transfer the registration of the domain name if I have to?”
Mechanically, this is fairly straightforward process, and each domain name registrar has procedures for transferring the domain name to a different registrant who is also using the same registrar, as well as procedures for transferring the domain to a different registrar. For example, here’s a description of the process for a transfer at Network Solutions:
And here’s the process for transferring into Network Solutions (from a different registrar):
And here’s the process for transferring out of Network Solutions (to a different registrar):
“What other documentation would be part of a domain name transfer (or sale)?”
Excellent point. Beyond the processes above, if you are transferring a domain name to or from a third party, we generally recommend the parties enter into a Domain Name Transfer and Assignment Agreement that specifies domain to be transferred, the consideration to be paid between the parties (and when such amounts are paid), and contains at least three key concepts (sample wording for each is provided below):
1. A written assignment of the domain name along with the goodwill and trademark rights in the domain name:
Registrant irrevocably sells, grants, assigns and conveys to Purchaser all of Registrant’s right, title and interest in and to the Domain Name, together with the goodwill of the business symbolized by or associated with the Domain Name, including, without limitation, Registrant’s worldwide right, title and interest in perpetuity in and to: (a) the domain name registration secured through Registrar or the applicable successor domain name registry, together with all associated uniform resource locators and other Internet or similar addresses or identifiers; (b) all pending or future applications for registration, if any, for the Domain Name with any other domain name registry; (c) the right to secure additional registrations with other domain name registries for the Domain Name; (d) all trademark, service mark or similar rights in the Domain Name and any similar names, together with all applications and/or registrations of such trademarks and service marks and the right to seek such applications, registrations and renewals therefor.
2. A “further assurances” clause (to cover any additional steps necessary) and a recital that the purchaser will provide all necessary information to the registrant:
Registrant agrees to carry out any assignment formalities with the Registrar or any relevant entity, and execute any and all papers necessary to convey the Domain Name to Purchaser and transfer the Domain Name registration with the Registrar or any relevant entity. Registrant agrees to execute and deliver to Purchaser such instruments as Purchaser deems necessary to vest in Purchaser the sole ownership of and all exclusive rights in and to the registration of the Domain Name as well as to take such other steps as may be required to transfer ownership of the Domain Name. If Registrant fails to so execute and deliver, Registrant hereby appoints any officer of Purchaser as his attorney-in-fact for the limited purpose of executing on Registrant’s behalf such instruments. Purchaser shall provide to Registrant all registration information that shall be associated with the registration of the Domain Name (registrant, administrative, technical and billing contacts, and DNS) and mentioned in the Network Solutions WHOIS database after the realization of the transfer of the Domain Name in accordance with ICANN, Registrar or any relevant entity requirement.
3. Representations and warranties as to ownership of the domain name and obligations not to use the domain name or register confusingly similar domain names in the future:
Registrant represents and warrants that (a) Registrant has all requisite power and authority to execute and deliver this Agreement, to consummate the transaction and perform all of the terms and conditions contemplated by this Agreement; (b) Registrant is the sole and current registrant and owner of the Domain Name; (c) the Domain Name is not subject to any lien, security interest or other encumbrance and Registrant is transferring and assigning the Domain Name to Purchaser free and clear of all liens, security interests or other encumbrances; (d) Registrant has not and will not take any action or inaction that would impair the value or functionality of the Domain Name; (e) Registrant will cease using, advertising, or otherwise promoting the Domain Name in connection with its products and services; (f) Registrant irrevocably undertakes not to use the denomination “_____” or any similar denomination as a trademark, service mark, trade name or domain name or otherwise in connection with any advertisement or website; (g) Registrant will not, directly or indirectly, contest Purchaser’s ownership of or actions with respect to the Domain Name; (h) Registrant will not, directly or indirectly, contest Purchaser’s rights, now or in the future, under the term “_____” or any similar term; and (i) Registrant does not now own and will not purchase in the future any additional domain names beginning with the word “_____” or anything confusingly similar thereto.
First and foremost, check your domain names to make sure your company/entity is the registrant. If it isn’t, work with the current registrants to transfer the domain to the company (and update the registrant, technical and admin information accordingly). If you are transferring to or from a third party, consider using a full Domain Name Transfer and Assignment Agreement.
Finally, remember to make sure to renew your domain name registrations (and pay the applicable fees) to the registrar well in advance of the domain registration expirations, so as not to have any embarrassing (or worse, expensive) google-like lapses in your domain ownership.
“Got it. Any suggestions for further reading?”
Why, yes we do. Once you’ve devoured all the information on knowingstartups.com, you may be looking for other interesting information about startups, technology, etc.
Well, one of my fellow partners (and chair of the Technology Transactions Group that I am in), David Gurwin, has his own law blog “Gurwin’s Keyboard” which covers legal entertainment and technology issues. While he hasn’t discussed any domain name issues yet, there’s plenty of useful and interesting posts for you to check out. Here’s a couple I rather enjoyed: