A frequent question we are often asked by clients is whether or not the domain name they have purchased is intellectual property that provides for some sort of protection over their chosen brand name.
Domain names, whilst often considered the foundation of a business’ online presence and are a vital part of the modern business landscape, have traditionally been classified as intangible assets of a business and protected as such. Even though domain names have long been accepted as assets that can be protected, debate over whether they can be classified as intellectual property has been ongoing.
For example, in the United States, domain names are seen as a form of intangible property such as a trade mark. As such, businesses can register and trade mark their domain names so that they are protected from infringement.
Similarly in the UK, domain names can be protected when they fall under the category of trade marks. Trade marks fall under the protection of the Trade Marks Act 1994, which outlines rules for legal ownership and protection, it was amended in 2020 to include domain names as being capable of protection via trade marking. However, to qualify the domain name must perform a greater function than simply being an internet address and be distinctive as a source of origin of particular goods and services.
Organisations like the World Intellectual Property Organisation (WIPO) also allow businesses to register their domain names with them and submit a dispute in the event of infringement.
It is understandable that this view is becoming more common place, domain names possess a lot of intellectual property elements when you consider the attention paid to creativity and research when selecting and registering them. Many businesses choose to invest significant time and resources into understanding the legal landscape of domain names and the implications of registering a domain name. This knowledge and creativity should be protected as intellectual property, especially if it provides a competitive advantage to the business.
However, there is also an argument to be made in favour of not classifying domain names as intellectual property. For example, most domain names are significantly shorter than trademarks and as such are incredibly difficult to defend and protect in the event of infringement.
Ultimately, while domain names are similar in some respects to intellectual property, due to the inherently difficult nature of protecting and defending them; they should not be considered as such. Even though domain names may possess some aspects of intellectual property, it will often be the case that they are too difficult to adequately protect under existing intellectual property laws, making them an inadequate type of property to register and protect.
The UK has made significant steps towards protecting domain names as intellectual property; however, the complete answer is still not entirely clear. There are many cases where domain names may not be protected by the law, and it’s important to realise that IP is an ever-evolving concept. That being said, the Trade Marks Act and other related laws can go a long way towards protecting people and their domain names.
For now, we would suggest the best approach for businesses is to accept domain names as intangible assets and explore other avenues for protection, such as trade marks.
Written by Alex Welham – Solicitor
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