That decision had held that Tucows.com could bring an action for a declaration of its rights to a domain name in an Ontario court, on the ground that the dispute involved “real or personal property located in Ontario”. In this case, Tucows.com was the registrar and the owner of the domain name Renner. com. The other party was a Brazilian company that owned the trade mark ‘Renner’ (though not apparently in Canada.)
The Court of Appeal had to consider a number of issues to come to its conclusion. It strikes me as well written and well controlled. It dealt with the relationship between a local lawsuit and a proceeding under the WTO’s UDRP (since Renner had started a UDRP proceeding before Tucows’ action in Ontario)(para 26 – 31), the nature of a licence as property (para 41 – 66), the application of the rules of jurisdiction in a declaratory action (para 34 – 35), and others.
The Court went to first principles about what ‘property’ is – a number of relationships about which the law will support claims. Which relationships and which claims are discussed in the judgment.
It also decided that when the domain name registrant and the registrar were in Ontario, the property in the name were in Ontario, at least for the purpose of supporting an action under the Ontario rules.(para 67 – 72)
Presumably the decision of the Supreme Court of Canada not to give leave is a strong indication that this reasoning is valid across the country, at least on the property issue and at least in common-law jurisdictions. How the rules of practice may vary is a different question, though the Ontario CA did deal with higher-level issues like ‘real and substantial connection’ (para 73) as well as with the wording of Ontario’s rules.
Does this sound right to you? Does it change the advice you might give to a client about a domain name, and if so, how? Is a dispute in Quebec likely to come to a different conclusion on the property question?