Domain Ownership Question

[CenterPoint]

I would be interested in anyones thoughts or opinions on the following situation.

Approx 2 ½ years ago I sold one of our mortgage related .CA domains to a buyer for about 3K. Not being a trusting sole, I arranged for my lawyer to handle the transaction. Papers were drawn up stating that on receipt of full payment we would transfer the name

As the buyer made payment with a number of post-dated checks we agreed to redirect the DNS until all checks cleared and we transfered the name. Once the payments had cleared I initiated the transfer through the registrar and CIRA. Despite three transfer attempts, and numerous phone calls and emails the buyer never completed the transfer and the domain remained in my name

Some seven months after the sale the domain expired. I allowed it to expire and waited until the last minute just before CIRA released the name to renew it for one year. Since that time I have renewed the name two additional times.

About a year ago we received a cease and desist letter from the government agency that regulates the mortgage industry here. Apparently this guy was claiming to be a mortgage broker without a licence and as the whois listed my firm, the regulator came after me. At that point we stopped redirecting the DNS

Last week out of the blue the buyer called me looking to get the domain transfered to his name.

In my opinion he no longer has any rights to the name. What do you think?

 

[Damion]

The OP can not even transfer the domain to the buyer without putting himself in a legal predicament. You just can't ignore a government issued C&D letter like it isn't there.

He is according to the official records (WHOIS) the owner so HE has to transfer the domain to the government body he has been approached by.
I don't see why you would want to adhere the request of a person committing unlawful acts? And putting yourself at risk by ignoring the C&D letter because you want to do the "right" thing for someone breaking the law.

In all respect and in my opinion it is you and AbsolutelyFreeWeb who has their view on morals pointing in the wrong direction not to mention being confused about your own responsibility to your own well being. Not perse for the money but concerning legal consequences.

The domain is A being used in a unlawful act and/or B possibly contains the trademarked keyword "Realtor" making the whole request obsolete from the buyer.
Perhaps the OP does not have any claim as well being the domain may be trademarked.

But the buyer can not be the official owner anymore no matter how at this point.

I am not going the discuss the car example because it would be a But this...But that... - type of discussion.

For me it's very simple i would transfer the domain to the issuer of the C&D letter and let them duke it out. And if in the end the domain is being kept by the government body and i would be a licensed broker or authorized user of a Realtor® domain then i would try to obtain it depending on the procedures in play and how bad i really want it.

I would strongly suggest not to transfer the domain to the buyer since a C&D letter has been issued.
Sales contract or no sales contract, i would not put myself at risk because Mister conman has been intentionally avoiding completing the transfer for his own unlawful acts.

It's very simple guys:

1: I transfer the domain to the buyer ASAP and ignore the government issued C&D letter creating potential to cause legal consequences for myself.

2: Transfer the domain to the government body issuing the C&D letter to me and let them duke it out keeping me out of the picture.

I would choose number 2, what would you choose?

And hopefully the body in question is not suspicious of the OP of strawman practices.
Theoretically this could also be possible.

 

[wisconsin]

Hi Damion,

The seller has stated in early posts that he wanted to keep the domain because it is valuable and he would like to resell it to cover some of the expenses/legal fees!

The government and realtor association can file a C&D letter any day of the week but how true these allegations are?

Maybe the reason the buyer is asking for his domain is because he does not believe he is in violation of anything!

Keeping a ‘trouble’ domain that you legally sold is only going to get you in more trouble. CenterPoint, it would be helpful if you can share either the sale contract and/or the C&D letter.

 

[Damion]

The seller has stated in early posts that he wanted to keep the domain because it is valuable and he would like to resell it to cover some of the expenses/legal fees!

That is true and he renewed the domain three times as he said. But if the buyer wants to abuse my identity for his unlawful practices. And putting me at risk and basically take advantage of me by doing this i sure as hell would not give him the domain if i can pull this of legally.

So if the OP has possibilities to maintain ownership depending on the nature of the contract and if the law allows it then i would say keep the domain! I have no sympathy for someone that takes advantage of me. Do you have sympathy for someone that takes advantage of you?

The government and realtor association can file a C&D letter any day of the week but how true these allegations are?

If the buyer is in violation of the law that applies to the Realtor business then they want to prevent the domain not to be abused anymore by this person that poses as a licensed mortgage broker.

So i think the validity of this C&D is quite strong.

Maybe the reason the buyer is asking for his domain is because he does not believe he is in violation of anything!

Or he is finally due for court and need to cover legal fees for himself after one year? And thinks reselling the domain may help him with this?

Keeping a ‘trouble’ domain that you legally sold is only going to get you in more trouble.

Exactly my point, therefor because a large time period has passed since the C&D has been issued and received, the OP should verify with the individual on the letterhead of the C&D to confirm if this C&D is still valid.

If this is the case i would transfer it to them since it's not my battle and the C&D is directed at me. Let them duke it out.

Secondly if the C&D is not valid anymore and the constructed sales contract together with the Canadian financial laws that apply to this type of situation allows me to keep the domain i would keep the domain and sell it if i would desire to do so.

That is what you get if you take advantage of me.

On the other hand if no abuse of the domain has been made in the form as described and i would have not been taken advantage of but the buyer merely neglected his part so long i would have absolutely no problem transferring the domain to him.

He did pay for it after all and did nothing to put me in danger.

I really don't understand why i see these postings about being FOR the buyer since he is taking advantage of the seller by not changing the WHOIS details.

If i owned for example a domain shopping.com ( I wish ) and sold it to you but you intentionally avoid changing the WHOIS because you have control of the admin email.

And you create a shopping site and collecting Creditcard details for a period of time just to sell it to cybercriminals for a profit.

And you get busted by the authorities then i would be in trouble as well since my details are listed as the owner in the WHOIS records.
Do you really think i would transfer the domain to YOU if i legally don't have any obligations to do so?


Same as in the case of the OP, the buyer put him at risk. The severity of the offense is likely on another level but the same principle applies here.
I would have no sympathy for the buyer to any degree.

I don't have to question my morals since my actions would be the best action from a moral point of view.

I don't feel sympathy for frauds taking advantage of people and i sure don't feel any obligations towards these type of persons.

2cents

 

[CenterPoint]

Thank you for all your comments I am surprised my little question has created such a lively debate.

I would like to clarify one thing the C&D we recieved has nothing to do with the domain is the traditional trademark sense. Basically the buyer created a website promoting his mortgage services and he did not have a licence. The regulator's C&D letter related to the website.

As the domain was listed in my name and there was not contact information other than basic forms on the website to identify the true owner the letter was sent to me as it was assumed that becauseI had control of the DNS I owned the website. I was required to take down the website and I was charged with operating a mortgage business without a licence. Ultimately I had to defend myself and clear my name.

As for the buyer not being aware he was unlicenced regardless of what he says it is very easy to check. The regulator provides a tool on their website that is updated daily that lists all licenced mortgage brokers in the province.

Don't get me wrong, while I would love to be able to recoup some of my costs by claiming ownership to the domain however, ethically it does not feel right. Hence the original question.

After speaking to my legal counsel, there are arguments for both sides. She is currently doing some research related to ownership and if I would face any possible liability for turing the name over to someone who will use it to promote an illegal business.

Her first response was to cancel the registration and sue the buyer in civil court for damages

Thanks
Paul

 

[Dave_Z]

I'd like to offer yet another way of viewing this ownership thingie.

I sold you a car for $3k....you paid me and we signed a “sale contract” to document the transaction but for one reason or another you, buyer, never went to the DMV and changed the title ownership and you kept it under my name….later on, you used the car in a robbery.

Am I still the owner of the car?

You're not the owner based on whatever was agreed upon between you and
the other party. But as far as the DMV is concerned, you're still listed as the
owner.

Like a domain registrar, they take the records at face value. They don't know
and don't care what happened behind the scenes of the registration until they
have been notified of such in whatever way "acceptable".

So as far as the authorities are concerned, they'll naturally assume the OP is
the owner of that domain name based on the current registration records. It's
the OP's burden, then, to show what exactly went on.

Good luck getting your issue resolved, CenterPoint. At the end of the day, it
boils down to whatever facts are presented and evaluated.

 

[Damion]

As for the buyer not being aware he was unlicenced regardless of what he says it is very easy to check. The regulator provides a tool on their website that is updated daily that lists all licenced mortgage brokers in the province

Of course the buyer was aware, you either have or don't have a license You know you either have or don't have a license when you're going to step into a car and you would also know this when you're in the real estate business.

....and I was charged with operating a mortgage business without a licence
....Ultimately I had to defend myself and clear my name.


Don't get me wrong, while I would love to recoup some of my costs, by laying claim to the domain but ethically it does not feel right. Hence the original question..

Nothing ethical wrong with not transferring the domain to the buyer just look above what he got you in to and costed?
That is enough for me to maintain ownership if that is legally possible.

Why even struggle with ethics? The guy willfully put you into trouble, you should not take this.

He already had you bend over (Figurely)....
Do you want to say THANK YOU :tu: as well? :lol:

 

[Ronald Regging]

Personally, I'd just keep the domain. Explain to the buyer the trouble he got you in due to his behavior and the costs associated with that. Inform him that if he comes after you for the domain, you will file a civil suit in turn to reclaim your damages. With what you described, it seems fair. You had out of pocket expenses due to his actions and failure to change the information. You shouldn't be left to eat those costs.

 

[wisconsin]

Personally, I'd just keep the domain. Explain to the buyer the trouble he got you in due to his behavior and the costs associated with that...

This year, I sold a domain to a Kabul, Afghanistan Company for $35,000 but they never completed the transfer but I still contacted eNom registrar and updated their whois info. I could have easily kept it under my name but that’s not the way I conduct business.


The seller got in trouble as claimed because the seller kept it under his name after he sold it. I know the seller had tried to transfer the domain several times, but I am assuming the seller had access to the buyer’s info from the “attorney” sale contract that was signed…I am also assuming that there was email communication [buyer’s email] before the sale transaction took place. So, there is plenty of info about the buyer to be able to change the whois info after the sale but the seller decided not to update the whois info and kept his name as the owner.

 

[CenterPoint]

This year, I sold a domain to a Kabul, Afghanistan Company for $35,000 but they never completed the transfer but I still contacted eNom registrar and updated their whois info. I could have easily kept it under my name but that’s not the way I conduct business.


The seller got in trouble as claimed because the seller kept it under his name after he sold it. I know the seller had tried to transfer the domain several times, but I am assuming the seller had access to the buyer’s info from the “attorney” sale contract that was signed…I am also assuming that there was email communication [buyer’s email] before the sale transaction took place. So, there is plenty of info about the buyer to be able to change the whois info after the sale but the seller decided not to update the whois info and kept his name as the owner.

Not that easy when dealing with CIRA. The registrar cannot simply update the registration information for a .CA domain. At that time, all changes required approval through the CIRA website.

Requesting that Tucows or Enom update the whois info is useless unless the
buyer signs into the CIRA website and approves the changes.

 

[Damion]

This year, I sold a domain to a Kabul, Afghanistan Company for $35,000 but they never completed the transfer but I still contacted eNom registrar and updated their whois info. I could have easily kept it under my name but that’s not the way I conduct business.

This is irrelevant - The company did nothing that put you in any legal trouble - the company did not willfully avoided changing ownership for his own illegal immoral agenda.

So you knew the system to still complete the transfer, the OP did not.
You now want to put the blame on the seller because he needs to forfill the buyers part of the deal?

You can not blame him for this. That is immoral.

The seller got in trouble as claimed because the seller kept it under his name after he sold it. I know the seller had tried to transfer the domain several times, but I am assuming the seller had access to the buyer’s info from the “attorney” sale contract that was signed…I am also assuming that there was email communication [buyer’s email] before the sale transaction took place. So, there is plenty of info about the buyer to be able to change the whois info after the sale but the seller decided not to update the whois info and kept his name as the owner.

How can you tell he willfully decided to keep the name under his ownership?
You can't but yet you want to make it fact.

The seller did what he could to his knowledge so don't blame him for not knowing the system.
And actually that is not the issue now since this whole issue has progressed so far.

The buyer caused a lot of trouble for the seller and expenses as well.
If it is legally possible to maintain ownership at this point it is the moral thing to do.

And if the buyer did not abuse the domain and caused him trouble then the moral thing to do in that case would be of course to transfer the domain.

The buyer F***** the seller so why in earth would you want to reciprocate that with kindness? The buyer is a white collar criminal for godsake!
You should not accept to be screwed.

Let me ask you this: At this point in the whole progression and events that have occurred as they have and the troubles that has been caused would you really decide to transfer the domain to the buyer if you wouldn't have to from a legal point of view?

 

[wisconsin]

Hi Damion,
I totally respect your point of view!

The buyer F***** the seller so why in earth would you want to reciprocate that with kindness? The buyer is a white collar criminal for godsake!

Receiving a C&D does not make the buyer a criminal! And we don't know all the facts? Do we?

Let me ask you this: At this point in the whole progression and events that have occurred as they have and the troubles that has been caused would you really decide to transfer the domain to the buyer if you wouldn't have to from a legal point of view?

Damion, I've been saying "Yes" all day long! Even the seller's legal counsel did not advise of keeping the domain but rather cancel the registration.

Thanks, Damion for sharing your thoughts!

 

[Damion]

Receiving a C&D does not make the buyer a criminal! And we don't know all the facts? Do we?

Not the receiving the C&D part, it is the reason behind it that makes the buyer a criminal.
He was an unlicensed mortgage broker posing as a licensed mortgage broker which can even lead to jail time. Using the domain for his unlawfull practices.

The seller said that this was the reason being given by the issuer of the C&D letter so that's enough said.
And by doing so:
1:He has created a legal problem for the seller.
2:He caused financial damages since the seller had to defend himself in court!

of the legal fees accumulated dealing with the crap he caused.

and I was charged with operating a mortgage business without a licence. Ultimately I had to defend myself and clear my name.

Damion, I've been saying "Yes" all day long! Even the seller's legal counsel did not advise of keeping the domain but rather cancel the registration.

Thanks, Damion for sharing your thoughts!

Okay, so you made that perfectly clear now.
So you rather bend over and say Thank You :tu:

You mention "Even the seller's legal counsel did not advise of keeping the domain but rather cancel the registration" as if it is the same thing?

Canceling the registration does not mean transferring the domain to the buyer!

Thank you as well for sharing your thoughts about you rather sticking up for a white collar criminal then the common law abiding citizen.

Bravo!

 

[wisconsin]

...rather sticking up for a white collar criminal then the common law abiding citizen. Bravo!

You misunderstood me again! I am not defending the buyer or the seller….that’s why, from the beginning, I am trying to differentiate between the legal implication and obligation of a sale contract of a domain……………… and its “use” by the buyer.

As you can see other members have shared the same concerns I have.

I am sure that the seller was able to clear his name, after he received the C&D letter, by showing that he had sold the domain to this guy and that he had nothing to do with the use of the domain.



Now after, you establish ownership; the seller can use any legal means to sue for damages or anything else he believes he is entitled to.

Damion, I think you see the sale of the domain + its use in “illegal’ activities as one argument….On the other hand, I see it as 2 different arguments.

It would be great to see other member’s opinions if possible, so that you and I don’t have to take over this thread!

Thank you,

 

[Ronald Regging]

Wisconsion - I agree that it is two seperate arguments, but at the same time both arguments negate each other. The buyer may legally be entitled to the domain, I won't argue that. In fact, lets assume he is. We also have to recognize that the seller had to waste his time, possibly take off work, and pay money to a lawyer to defend himself in a situation that was a direct cause of the buyers actions and lack of actions. So in any court, the buyer would be held accountable for reimbursing the seller for these damages.

So maybe there is a proper process to follow here, but the end result will be that the buyer gets the domain and then has to pay the seller probably just as much as the original selling price in damages. And it may likely come to that if the buyer pursues it to that point.

But if possible, I think the seller should attempt to minimize his involvement in further court proceedings. He could very well hand the domain over and then file suit to reclaim his damages. This may be the proper legal way. But why would the buyer want to go through even more crap to rectify a situation that he was in no way responsible for? Possibly losing more time from work and paying more legal fees?
If I owe you $3,000 and you owe me $3,000, why bother going to court just to say we're even?

Like I said before, I think the OP should just email the guy informing him of his out-of-pocket expenses due to the buyers actions, let him know that as a result of this, he is not giving him the domain. Then tell the guy if he wants to pursue court action to reclaim the domain that he will also face a suit to reimburse the seller for damages. This way the decision is left upto the buyer as to what he wants to do, knowing full well the circumstances involved.

Who knows, maybe the buyer won't want to have to go through all the hassle either and just call it even.

 

[Damion]

You misunderstood me again! I am not defending the buyer or the seller….that’s why

If you transfer the domain to the buyer as you described at THIS in the progression of events as have occurred as explained then you are in favor of the buyer.

You are possibly giving away the only way to recuperate your legal expenses and timely expenses you have endured from the buyers illegal practices.

What you don't plan ahead is that the buyer may vanish from authorities and then there is no way you can get your money back.
It's a probability don't you agree?
What if the buyer has no money to reimburse the seller? It's a probability don't you agree?
You can't pluck a chicken with no feathers

To transfer the domain without any legal coercion is a probability for shooting yourself in the foot.

Can you understand this position Wisconsin?
Take it one step at a time and plan two ahead.

Don't transfer the domain unless the buyer made his first move, wait him out.