Domain name is "personal property"

Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 holds a domain name is personal property for the purposes of civil litigation in Ontario:

  The attributes of property for purposes of rule 17.02(a)

[56]         The term "personal property" is not defined in the Rules of Civil Procedure.  The fact that this term is not defined leads me to the common law attributes of property.

[57]         There is no agreed list of required attributes of "property" at common law.  One academic author, Professor Ziff, in Principles of Property Law, 5th ed. (Toronto:  Carswell, 2010), describes property in this way at p. 2:

From an intuitive perspective the idea of property is perfectly straightforward:  the term refers to those things one can own.  Although it is both sensible and common to use such language, the law offers a different slant, one that tends to dwell more on the owning element.  Property is sometimes referred to as a bundle of rights.  That characterization means that property is not in fact a thing, but rather a right, or better, a collection of rights (over things) enforceable against others.  Likewise, it has been said that "[t]he concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things".  Explained another way, the term property signifies a set of relationships among people that concern claims to tangible and intangible items.

[58]         The version of this passage that appeared in the third edition of Professor Ziff's book was cited with approval by Sharlow J.A. in Manrell v. Canada, [2003] F.C. 727 (C.A.), at para. 24.  From this passage, Sharlow J.A. concluded at para. 25 that "[i]t is implicit in this notion of 'property' that 'property' must have or entail some exclusive right to make a claim against someone else.  A general right to do something that anyone can do, or a right that belongs to everyone, is not the 'property' of anyone."

[59]         Another well-respected academic author, J.W. Harris, in Property and Justice (Oxford:  Clarendon Press, 1996) states at p. 139:

'Property' designates those items which are points of reference within … the rules of a property institution, viz., trespassory, property-limitation, expropriation and appropriation rules.  Such items are either the subject of direct trespassory protection or else separately assignable as parts of private wealth.

Therefore, 'property' comprises (1) ownership and quasi-ownership interests in things (tangible or ideational); (2) other rights over such things which are enforceable against all-comers (non-ownership proprietary interests); (3) money; and (4) cashable rights.  That is what 'property' is.

[60]         Ziff summarizes his description of property as signifying, "a set of relationships among people that concern claims to tangible and intangible items".  Harris refers to property as comprising an ownership interest in something that is "ideational", which I understand to mean something intangible that has been conceived by the mind.  Of note, Harris and Ziff both emphasize that property is a collection of rights over things that can be enforced against others.  Such a concept can be seen in the jurisprudence as well.  In Saulnier v. Royal Bank of Canada, [2008] 3 S.C.R. 166, Binnie J. considered whether a fishing licence constituted "property" under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA"), and the Nova Scotia Personal Property and Security Act, S.N.S. 1995-96, c. 13 ("PPSA").  He concluded that while a simple licence was likely not property at common law, the bundle of rights attached to the fishing licence was sufficient to qualify it as property for the purposes of the BIA and the PPSA.  In particular, the holder of such a licence had a right to engage in an exclusive fishery under the conditions imposed by the licence, and a proprietary right in the fish harvested and the earnings from their sale.  Binnie J. further commented that the licence unlocked the value in the fisherman's other marine assets.  The subject matter of the licence, coupled with a proprietary interest in the fish caught pursuant to its terms, bore a reasonable analogy to a common law profit ŕ prendre which was undeniably a property right:  see paras. 14, 16, 23, 28, 34 and 43.

[61]         In giving a purposive interpretation to the legislation in issue in Saulnier, Binnie J. rejected the traditional common law approach that was followed in Re National Trust Co. and Bouckhuyt (1987), 61 O.R. (2d) 640 (C.A.).  In Bouckhuyt, Cory J.A. held at p. 648:  "The notion of 'property' imports the right to exclude others from the enjoyment of, interference with or appropriation of a specific legal right.  This is distinct from a revocable licence, which simply enables a person to do lawfully what he could not otherwise do".  Cory J. went on to hold that the tobacco quota in issue did not qualify as "intangible personal property" under Ontario's Personal Property Security Act, R.S.O. 1990, c. P.10, as renewal of the quota was subject to the "unfettered discretion" of the Tobacco Board and the quota itself was "transitory and ephemeral". 

[62]         The bundle of rights associated with the domain name <renner.com> that Tucows has (as purchaser and registrant) satisfies the attributes of property as described by Harris and Ziff in that at present Tucows can enforce those rights against all others.

[63]         As in Saulnier, Tucows derives income from being the holder of the rights in the domain name <renner.com>.[9]  It has fourteen clients who subscribe to personal e-mail services using the domain name.  If the domain name were to be transferred to Renner, it would undoubtedly assist in unlocking the value of Renner's business.  The registered owner of the domain name has the right to exclusively direct traffic to the domain name's corresponding website and to exclude anyone else from using the same name.  The ability to exclude others from the enjoyment of, interference with or appropriation of a specific legal right was held by Cory J. in Bouckhuyt, as a necessary incident of property.  Unlike the situation of the tobacco quota in Bouckhuyt, renewal of the registration of a domain name at the end of any term for which it has been licensed is not subject to an unfettered discretion but to the UDRP and the UDRP Rules.

[64]         While the decisions in Kremner, Saulnier, and Bouckhuyt and the academic commentators all emphasize exclusivity of a right as an essential aspect of property, other judicial decisions, such as National Provincial Bank Ltd. v. Ainsworth, [1965] A.C. 1175 (H.L.), hold that other requirements must also be met.  In  National Provincial Bank, Lord Wilberforce stated at pp. 1247-48 that, "[b]efore a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability."  A domain name also satisfies this definition of property.

[65]          I have already discussed what a domain name is.  To summarize, a domain name is an intangible or ideational thing consisting of two parts, one being numerical and the other being a distinctive readable address, that enables an internet user to access a web page.  The rights that Tucows has in the domain name <renner.com> have been identified by Renner.  Before the WIPO tribunal, Renner sought to have Tucows's registration set aside and to assume it.  Tucows's ownership of the domain name has a degree of permanency; it has owned the domain name since 2006.

[66]         Thus, based on the above definitions from Canadian and other common law jurisprudence, Tucows has a bundle of rights in the domain name <renner.com> that constitutes "personal property" within the meaning of rule 17.02(a).