Hi chris21,
We're definitely going to be using English - but some would say
Legalese is quite another language!
First I must say this is Legal Advice if I have ever seen it, and so I
will say that Google Answers can never be considered Official Legal
Advice. Thus, you should take these suggestions and work with a lawyer
to draft a contract(s) .
This first section is a sample of a domain name sale contract that you
can buy from a site:
AllBusiness.com Forms & Agreements (See "Domain Name" link)
http://tools.allbusiness.com/forms/detail.asp?08#sec128
----- BEGIN FIRST SECTION -----
Explanation and Guide
Form:
Domain Name Purchase Agreement.
Explanation:
This is a sample form agreement for the purchase of a World Wide Web
domain address (such as www.favoritesites.com/). The form tends to be
pro-purchaser oriented. It is intended to be used primarily to buy a
domain name only and not for the business or assets that may otherwise
be associated with the name.
DOMAIN NAME PURCHASE AGREEMENT
This is an agreement between __________________________ ("Purchaser")
and ______________________ ("Seller").
WHEREAS, Seller is the legal owner of the World Wide Web domain name
"_________________" (the "Domain Name"); and
WHEREAS, Purchaser wishes to purchase the Domain Name and all related
rights thereto;
THEREFORE, the parties agree as follows:
1. Purchase. Seller hereby transfers and assigns to Purchaser:
a. all right, title and interest in and to the Domain Name;
b. any registered or unregistered trademarks, service marks,
copyrights or other intellectual property or proprietary rights based
on a related to the Domain Name; and
c. all goodwill associated with the Domain Name.
2. Payment. As consideration for the matters set forth in Section 1,
Purchaser agrees to pay the sum of (a) $___________ on the date
hereof, and (b) $_____________ when the Domain Name has been fully
transferred on the books and records of Network Solutions, Inc.
pursuant to Section 3 hereof.
3. Registration of Transfer. Seller is simultaneously executing and
notarizing the attached Domain Name Transfer Agreement to be filed
with Network Solutions, Inc. Seller shall cooperate as reasonably
requested by Purchaser to ensure that the Domain Name is validly
transferred to Purchaser.
4. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
a. Seller is the sole owner of all right, title and interest to the
Domain Name.
b. The Domain Name is being transferred to Purchaser free of any
liens, encumbrances, restrictions, licenses, or security interests.
c. Seller has the right, power and authority to enter into this
Agreement.
d. To Seller's best knowledge, the Domain Name and use of the Domain
Name by Purchaser does not and will not violate or infringe any
trademark, service mark or other right of any third party.
e. The Domain Name has not been, and is not currently, the subject of
any litigation, claims, arbitration or other legal proceeding nor has
the Seller received any notice of any such pending items.
----- END FIRST SECTION -----
That first section above was a sample agreement that you can buy from:
AllBusiness.com Forms & Agreements (See "Domain Name" link)
http://tools.allbusiness.com/forms/detail.asp?08#sec128
Now, I will link a selling contract that active-domain.com uses:
http://active-domain.com/agreement.htm
You should look at that page I linked to directly above. I have a
domain registered from active-domain.com so I know about their
contract.
Some more issues to keep in mind are provided by ReignYourDomain.org:
ReignYourDomain.org, what do I need to know?
http://www.reignyourdomain.org/singlelisting.asp?key=22
They include, quote,
"Make sure there is some sort of contract or bill of sale that is in
writing and signed by both sides. You don't want any surprises later.
* Make sure this document specifies that this domain name is being
sold and not leased or anything else.
* Make sure the document provides for the fact that the new owner is
the one and only owner (this is so that you buyers can make sure the
seller is really selling only to you and not pulling a fast one).
* Make sure the document includes the sale/transfer of copyrights
and/or trademarks. If you are buying zyzyk.com and the seller has
registered a trademark on The Zyzyk Company, which you're now taking
over, you will want your contract to reflect that any trademarks and
copyrights are now your property as well. You'd hate to buy that
domain and then have the seller sue you for trademark infringement
just because you're using it! :)
* Consider using an escrow service, which allows a neutral third party
to get in the middle just for the money exchange. For the seller, this
makes sure that the buyer pays on time, the right amount, and so
forth. For the buyer, this lets your payment be in the hands of a
neutral third party in case the seller backs out... that way, you will
not have lost your money. Once the escrow service confirms receipt of
payment, both parties can do what they need to complete the sale
knowing that all is perfect and safe for both sides."
That same site, ReignYourDomain.org, has a sample Microsoft Word
contract on file; you must go to the following page and download it
from there:
ReignYourDomain.org sample domain name sale contract
http://www.reignyourdomain.org/singlelisting.asp?key=122
Now, here are some more issues about buying and selling. Again, it is
from ReignYourDomain.org
ReignYourDomain.org is it OK to own a variaton of a known name?
http://www.reignyourdomain.org/singlelisting.asp?key=98
"Is it OK for me to own a domain name that is a variation on a
well-known name?
If you are thinking about owning a name like mymicrosoft.com,
1cocacola.com, or any name that just adds numbers or letters to an
existing trademark, you may be getting yourself into hot water. While
we can't say this is true 100% of the time, for the most part, adding
to someone else's trademark doesn't create a unique name or mark for
you. "
So you can see that you should add a note about trademarks. If a
trademark holder disputes you, they can bring you into arbitration or
court. That was provided by ReignYourDomain.org again. See below for
the whole answer about trademarks.
ReignYourDomain.org can lawyers take away a trademarked name?
http://www.reignyourdomain.org/singlelisting.asp?key=102
Also keep in mind that, when selling domains, you should indicate
whether you checked if the domain was trademarked. This is from
ReignYourDomain.org again.
ReignYourDomain.org I'm selling, do I have to check trademarks
http://www.reignyourdomain.org/searchresponse.asp#checkformark
Now, about contracts for buying. I think you should use the tips
above, check if the domain is trademarked, and definitely see if the
seller has a good contract.
When buying, if you are transferring the domain to another registrar,
you may have to wait until it is expired. From personal experience in
transferring domain names, I know that registrars don't want to give
up a domain name before it expires.
Instead, what you can do is transfer ownership while using the
original registrar. You have to make sure the original registrar
allows ownership transfers within its system.
Make sure that the method of transfering is in your contract for
buying: it should be either A) transfer ownership within the original
registrar's system, or B) transfer domain to new registrar - this
might have to wait until the domain expires so it will take extra
time.
Definitely don't buy a domain if the original registrar can't transfer
ownership within its own system. It should be able to do this upon
demand; it should not have to wait until it expires. But, if it hasn't
expired, the registrar can deny transfer to a new registrar.
Other web sites to look at:
International Trademark Association
http://www.inta.org/Default.htm
MARkLaw.com - Trademark Law
http://marklaw.com/index.htm
BITlaw: Trademark Infringement
http://www.bitlaw.com/trademark/infringe.html
U.S. Trademark Act
http://www4.law.cornell.edu/uscode/15/ch22.html
CyberLaw Links - Law and the Internet, Tradem...
http://www.fidex.com/cyberlawlinks.htm
Trademarks, Domain Names, and CyberLaw - A List
http://www.fidex.com/trademark.htm
Webdesign Contracts List of Links
http://webdesign.about.com/cs/contracts/
AllBusiness.com Legal Forms, Forms and Agreements, Find Forms
http://tools.allbusiness.com/forms/index.asp
ReignYourDomain.org Free Information, Resources
http://www.reignyourdomain.org/
Sincerely,
CJS |
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