It doesn't sound like any illegal or even unethical activity was carried out by the new domain owner but the "friend" sounds like a real piece of work. I must disagree with you characterization of the domain being "stolen." It wasn't stolen, it simply expired. If the domain name was that critical to the business, it should have been registered for multiple years and then this wouldn't be an issue. If the friend had used the domain for his competing business, you may well have had a legal case, but in this situation IMHO, I don't think so.
I would find out who the new owner is and make a reasonable offer to get the domain back. If this fails, and the domain is not absolutely critical to the business, move on and get the business going with a new identity. If the product is good enough, the domain name won't matter.
Sorry for your problems and good luck!..
I don't think I understand, The name was not renewed and dropped,and some one regged the name, There is no recourse of action, except to buy the name from it's current owner,possibly a civil law suit against the other share holder for not holding his end of the deal imo..
Thanks for the replies.
I didn't mean to imply the current owner stole it, but he is in possession of stolen property. This principle is at work in other kinds of property all the time. If a thief robs my house and steals a painting off the wall, pawns it and the pawn shop sells it, even though the current owner bought it legally they are in possession of stolen property and must turn it over if it is discovered.
While it may not be tested in the courts yet for domains, they are property just the same.
I totally agree that the situation was mismanaged by my friend Max during his lengthy hospitalization but he is the victim of a crime nonetheless. There is a civil action being pursued and from what I understand it is also being examined for criminal prosecution as well. As this progresses I will update this thread. If domains can be taken because they were shown to be stolen then it sure could make our lives all the more risky.
Sounds crazy but does anyone offer title insurance for domains yet?..
I don't think there's a stolen property case here to be had, if a name drops and is snapped up by someone, they're registering it under new terms.
I'll put it to you this way:.
When you rent a flat, you don't own it so to speak, you're merely renting it for X amount of time, and when your "lease" runs out, new tenants can move in. So if the old tenants broke a table and chairs of the landlords, do the new tenants have to pay for the damage?.
No, because it is the Landlords property (and the old tenants did the damage ).
I think that's easy enough to understand!..
Domains are not property so you can't claim possession of stolen property.
This might be fraud but in what form? The friend had access to the domain in the registrar and was given access by Max. The friend let the name expire. I see no fraud here. Not that I am aware of but it's been discussed.
Domains as property is a concept some advocate and some don't. It's controversial to say the least.
Max would have to show damages in order to civily sue his friend. Since the site didn't seem launched yet and the only reason all this fell apart was because Max was in bad health I don't see how the friend is really responsible for the problems. Was there a contract? I bet not.
Reading your story it doesn't seem like the site really went forward so I don't see a reason why Max can't get a new domain and continue...
Thanks again for the comments.
The fraud in this situation is that Max's friend transferred ownership of the name to himself without Max's permission. He stole it and then let it drop. Perhaps it can be argued that being given registrar account access is permission to transfer the name but that seems slim.
Labrocca, I think you are spot on in that the issue revolves around if domains are considered property or not. I'm not a lawyer or an accountant so I'm admittedly ignorant in how this is all interpreted by law. It does seem however that US tax law would support the property interpretation. I would imagine there has to be some precedent in US law by now regarding this issue.
BTW, all this has transpired in the US and the new owner of the domain is also in the US.
The domain is important in that it is the name by which Max has referred to his venture and it's products in all the market testing and effort to raise capitol. Max really should have registered a TM on it, but didn't yet. Certainly he could re-brand under a different name but there would be some cost and confusion in doing so.
I agree that the easiest way to get the domain back is to buy it and that is what I have recommended, but regardless Max is going to do what it takes to hang his "friend" by his nipples...
First, it sounds like the word "friend" is being used loosely. I think there is probably more involved here in how and what powers he gave the friend. It's possible a lawsuit could be filed based on negligently handling an asset for him, but a lot would likely involve whether the friend had any responsibility as an employee, agent, customer, or some other legal means. Only a lawyer and a bunch more details can decide whether is would be worth pursuing.
As for the person who picked it up on a drop, they've done nothing wrong unless there's a trademark. Even if not registered, there could be TM if any product was even sold or publicly marketed under the name. If not registered, the burden of proof is in the claimants lap.
It looks like a cost benefit analysis. Compare the cost of buying the domain with the cost of changing names of the company/product. If buying is cheaper, there's no question. If a lawsuit is warranted, the claim could be for whaterver the cost of obtaining the domain back...
Without knowing complete details of their relationship or business agreement, it seems the friend at best is negligent. I think this will be chalked up to an error, and a costly one at that. Buy the domain name, and move on, lesson in hand.
Yes, "friend" is a poor choice of term but sadly that is how Max once considered him. Long time neighbors, probably played golf together, you know the drill. It's like something out of a soap opera.
The pending lawsuit involves much more than the domain name but it is part of it. Infringing on pending patents, stealing contact lists, etc. At the very least his friend was bound by a non disclosure agreement and probably more. He stole the business idea, contacts, domain, etc. from a dying man who didn't die and now he will pay the price. Unfortunately in these situations often innocent people get hurt.
I agree and have recommended that the easiest solution regarding the domain is to buy it back. Mark, though I'm sure Max has thought of it, I will tell him to add the price of the domain into the damages. As more of this unfolds I will update the thread...
I'd say it will nearly be impossible to "Certify" Clear Title on Domain names given the whole "ownership / leasing" arguement. Yes they could do Whois and Archival History research to make sure it was never "Stolen" or had any other issues.
The fact that Registrars are deleting domains over litigation threats and other registrars are popping up saying "Oh we never intended for those domains to be allowed in circulation" and are taking them back ... in recent days would make me weary of any such "Certification" ATM ~..
A similar discussion in another forum, although hypothetical: http://www.dnforum.com/showthread.php?t=192421.
Good luck to the OP's associate on making the "right" choice...