The key to all of your answers lies in your contract were there any terms with respect to your obligations and rights in the transaction? Surely, this should have been addressed in the process of using an attorney..
Actually they were address as per the sale was concerned. Both sides of the sale were fulfilled even though their were payment issues.
Despite the legal fees that were incurred due to his misrepresentations. I feel that as he failed to complete the transfer and then did not make any effort to renew the domain not once but three times he has lost any rights to the domain.
After all if we did not renew the domain he would have lost it...
The very minute that you renewed the domain, you should have taken the dns off to whatever you had it to for him. However I would think legally since you had basicly reregistered the domain after he failed to do so, the domain is your again. But really that may come down to a judge to decide. You will have to show judge the time of contract with buyer, and proof that you bought domain again from register when other person failed to do so. Any judge that awards the domain to other guy after he decided not to register it, well that judge would be a moron...
Who do you think is the owner? You?.
No, you are not! You still have obligation under the sale contract as you explained it [the buyer completed his contract obligation by releasing and transferring the funds to you...But you did not complete yours regardless of the registrar transfer technicalities] unless you had some unusual sale terms in the sale transaction you haven't mentioned, yet! You may be considered as the "keeper" or "maintainer" of the domain but certainly not the owner. You can ask for the renewal cost but, legally and ethically, you can not claim you're the owner now.
The buyer is asking for his domain and you need to transfer it...
Unless there was a clause in the binding legal document saying that the name was to be transferred x amount of time after full payment, and the cause of the non-transfer was the buyer, you might have claim to the name.
Otherwise, wisconsin is right.
Sorry, but the other guy gave up the domain when he didn't renew it. I have been through this before myself, and I won the court hearing since I renewed the domain when the buyer didn't. Its very clear and simple, you don't renew, you don't own it anymore!..
Interesting, SuperTrooper. That would have to be really fact-intensive to get.
A decision in your favor.
It'll be nice if you can post a link to it. But it's understandable if you don't...
I think we are talking about different things here...
Yes, if you let a domain drop and someone registers it...is a different scenario.
In this case, the transfer of ownership never took place and the sale contract was not completed as agreed, moreover, the seller kept the "whois" info under his name instead of the buyer, and the domain did not drop but instead the seller continued to renew it as he was the legitimate owner.
The buyer could argue that seller never fulfill his obligation, under the sale contract terms, and completed the transfer even after he received the money. The seller always kept possession of the name.
Here, the seller claims that because the buyer did not follow the registrar technical procedure, he lost the domain, it is considered incomplete transfer; and therefore, the seller becomes the rightful owner!!!.
Does renewing a domain, after you sold it and accepted the funds, make you the owner? regardless of renewing it at the last minute.
Changing the dns and the whois to the buyer while continuing to be in possession and in control of the domain all these years is considered to be in default of the sale contract unless you specified clearly some terms that cover it.
The seller mentioned, that until recently, he had the domain name dns pointing to the buyer's website, which somehow, acknowledges the buyer's rights to the name...
I think that Dave was being too polite...
This wasn't in the U.S., was it? A quick search turned up "bingo" that would fall under this description of events...
Why do you would still want the domain, now that it's causing you trouble with the government? Wouldn't it be in your favor to hand it over to the buyer and wash your hands of it?..
One thing that strikes me is that the buyer was using the domain in bad faith by posing himself as a licensed realtor and using the OP's whois listing to hide his/her own identity.
I don't know about other people here but in my view that is called fraud..
The OP renewed 2 times as he said and tried to contact the buyer numerous times but the buyer did not respond.
Why? Because he/she is posing as licensed realtor and hiding behind a fake whois..
Clearly fraud is at play here.
In my opinion the OP has no problem keeping the domain in his ownership as this socalled buyer was using this domain in bad faith. And a court decision would rule in the favour of the OP.
But I am no lawyer but this sounds plausible to me.
On the other hand it is naive from your part CenterPoint not pressing the buyer to change the WHOIS and taking measures to complete the WHOIS change.
Perhaps this may also be something that can be turned against you?..
In my opinion, this is irrelevant! at least from a "sale contract" stand point[may be other members see it differently].
CenterPoint is asking whether the buyer has any rights to the domain [I understand he believes NOT]. the sale contract and ownership of the domain is the main discussion unless I understood it differently!.
The "fraud" and compliance of local law use and "license" is another case, and it certainly does not give the seller the right to keep the money and the domain after a sale contract was agree upon and signed [I assume].
CenterPoint, it would be helpful if you can share the contract language. If you can't, it's understandable.
I am no lawyer but I guess if one is crossing the path from legal to criminal offense then the right to the domain goes out the door..
Since the buyer has been posing as a realtor I guess it's a criminal offense or maybe not and it's a different type of case.
Which maybe puts the buyer in favor over the seller...
This seems pretty simple to me. Buyer BOUGHT the domain..it's his. You should have let it drop. Now there is government problems with it ..even more reason to give him the domain. He paid for it..give it to him. Sure he is a tard for not taking it sooner but oh well...
Imho your mistake was to renew it and keep whois in your name.....
Would the OP not put himself in a difficult situation because he would ignore the C&D order?.
It is a bit strange that the C&D was from a year ago as the OP mentioned You should have expected that there will be follow ups of some sort.
But government bodies can be a bit slow.
I would transfer it to the issuer of the C&D to be on the safe side. The buyer was already in violation for abusing the domain and even the registrants information.
Would the buyer have any legal claim to the domain after he was using it in bad faith as he is not a licensed broker which can even lead to jail time?.
Scroll all the way down untill you see the purple highlights. Better be sure to know what the deal is on ignoring a C&D letter..
Maybe I am drawing the wrong conclusions here?.
Just my 2 cents of course.....
Don't really need or want the name. But it is still quite valuable and it's sale would help me recover some of the legal fees accumulated dealing with the crap he caused.
Good hearing from you RJ it has been a while Actually it he was holding himself out as Mortgage Broker. The mortgage industry in Ontario is strictly regulated to prevent mortgage fraud.
The penalty for acting as a mortgage broker without a licence is.
"Upon conviction for an offence under the act, the penalty for an individual would be a fine of not more than $100,000 or imprisonment for up to one year, or both. The maximum penalty for a corporation would be a fine of $200,000." Actually we made approx 25 requests to the buyer to transfer the name and renew the domain including three registered letters. Our problem is we allowed the fact the DNS was redirected to slip through the cracks. I agree we should have shut it down immediately renewing the name..
Just my opinion... but you can't hold the domain hostage after you sold it and received the funds regardless of how many years have passed.
I understand you may have tried to transfer the domain several times but it does not give you the right to ownership and that's why the buyer is contacting you and requesting to transfer his name because he is the real owner.
The "use" of the domain is up to the buyer and if, in fact, the domain is being used in "fraud", it is not your responsibility but the owner's "Buyer"....Because you sold it and accepted the money.
Centerpoint, May I suggest you contact the "attorney" who drafted the sale contract and ask her or him what they think and feel free to share it.
Yes, the buyer then right? He paid the money but did not change the WHOIS info to his personal details. He can be using another name then his own name and even pretend to be you. You can send letters all day long but in the end if you're unfortunately enough ending up dealing with shady characters like this they are not going to comply to letters from you or your lawyer. These type of people can only be stopped if they are prosecuted.
A letter requesting to change the WHOIS is not having any effect, a letter to CIRA to explain the situation can. Perhaps that would have had enough weight to convince the buyer to change the WHOIS to his identity. You should have contacted CIRA and like you said discontinued the DNS settings. What about the responsibility not to comply to a C&D from a Goverment body?.
He made use of the name and that is what he also paid for if he failed to transfer the domain to his own identity then it's his loss then..
He won't be awarded the domain in any instance anyway since he is unlawfully practicing as a mortgage broker which can even lead to prison time. He used the domain as a means for false (Illegal) representation of himself so I don't see him being the owner in these circumstances.
He paid for the domain to be the new owner but since the legal position of the buyer he can never be the new owner of this domain. So why should you transfer the domain to him? If you transfer the domain to the buyer you would not comply to a C&D letter from the government which may have legal consequences for yourself.
Who knows how many damages the buyer caused to the public under false pretences using the domains WHOIS to shake of responsibility towards himself?.
The government don't care who the owner in theory is. They see the OP as the owner in the official records and he received the C&D letter so he needs to comply or face the consequences.
Unless the OP is a licensed Realtor should the domain contain "Realtor" in it he could hold the domain but if not and the domain contains the word "Realtor" he needs to comply with the C&D letter. And I don't think the regulatory body in question is sending C&D letters to it's own members.
Once gain my 2 cents but ignore the buyer and adhere to the request of the party that issued the C&D letter or you may face legal consequences of your own...
Where is your moral regardless of the legal bull? is there any limit to your greed? you sell a domain for 3K and still want to keep it?..
What about the morals of the buyer? since he was using the domain to misrepresent himself? Creating potential legal trouble for the OP!.
Adhering to the request of the "buyer" is in this case a loss of morals in my opinion...
There are no two wrongs in this matter.
If I would put myself in the position of CenterPoint....
Why would I need to feel guilty not adhering the request of someone willfully choosing the path of illegality and by doing so putting me at potential risk in the process?.
Why would I put myself at risk not transferring the name to someone that is responsible for illegal practices? The risk being here not to adhere to the C&D letter issued by a government body putting myself I a possible legal predicament.
I can not think of any justified reason that would make my actions immoral or wrong.
If the buyer really wants the domain which he will never get anyways in the end he can try to claim it from the government body handling his case after I would have transferred the domain to the issuer of the C&D letter.
There is nothing you could pin on me not morally or legally since I adhere the C&D letter of a government body..
And I am certainly not contemplating to adhere the request of a person willfully committing unlawful acts and that has used my identity in his unlawful endeavors exposing myself to potential legal violations.
So the buyer lost his money?, in this case the saying "You snooze, You lose!" is the most appropriate expression. He has to bite the bullet so to speak for his premeditated non-responsiveness to compliment his unlawful endeavors and of course the consequences that face him for acting a non-licensed mortgage broker...
Wipe your hands of it. Especially if your initial sale price was only $3k minus your attorney fee's etc. It sounds like the domains reputation is screwed now anyway, to the point where the government is involved. Id drop it and run. Not worth the headaches and if the government decided to pursue the unlicenced broker they will definately drag you through with him, even if there is no end consiquence you will waste a lot of time...
I totally agree! Also, the buyer is the "legal" owner according to the "sale contract".
It appears that "seller" would have claimed ownership of the domain even there was no problem with it's use....just because he renewed it and the proper transfer never occured.
Damion, I am not saying that the buyer is an "angel" but let's first establish the rightful ownership of the domain....then, you can discus it's use and the "fraud" claim associated with it.
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?..
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...
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...
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? 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. 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? 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..
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.
I'd like to offer yet another way of viewing this ownership thingie. 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.
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...
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.
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 as well?..
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...
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 thats 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 buyers info from the attorney sale contract that was signed&I; am also assuming that there was email communication [buyers 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...
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. 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?..
I totally respect your point of view! Receiving a C&D does not make the buyer a criminal! And we don't know all the facts? Do we? 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!..
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! Okay, so you made that perfectly clear now..
So you rather bend over and say Thank You.
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.
You misunderstood me again! I am not defending the buyer or the seller&.thats why, from the beginning, I am trying to differentiate between the legal implication and obligation of a sale contract of a domain&&&&&& and it's 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 + it's 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 members opinions if possible, so that you and I dont have to take over this thread!.
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...
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...