The Ninth Circuit has issued a decision in the SEX.COM case. Kremen had registered SEX,COM back when domain naems were free. Someone named Cohen sent a forged letter to NSI (the .com regsitrar) asking that it transfer control of the domain name. NSI complied. One of the facts with which I am not aware (and which is not articualted in this decision), is when Kremen notified NSI of the forgery, what was its rationale for refusing to comply. Kremen regained the domain name but has not been able to collect meaningful damages from Cohen (who is now a fugitive from justice). Kremen sued NSI for damagesas well.
The Ninth Circuit has tossed out Kremen’s contractual theories, stating that because Kremen did not pay for the domain name (this was in the pre-domain name fee days) he did not have a contract with NSI. This again raises the question, if NSI didn’t have a binding contract with Cohen, why didn’t it give the name back to Kremen once the forgery was established.
However, the Ninth Circuit did hold that Kremen had an intangible property right in the domain name. And now the case has been remanded to determine if NSI has liability for giving away that intangible property to a third-party.
Kremen v. NSI, No. 01-15899 (Ninth Cir. July 25, 2003)