internet corporate-law domain-name
Is a companies domain inherently included in the sale?
<p>The situation is that I'm contracted for a company to do a website migration of the company's official website.  The company was bought 7 years ago and the former owner remained contracted to manage the website.  Now the new owner of the company wants to take control of the website, and the former owner is refusing to hand over the data such as database and source code.</p>
<p>Is the domain inherently included in the sale of the company?  There could be no mistake about the fact that the website belongs to the company whatsoever.  However, since I'm only contracted to help the migration, what legal courses does the new owner have?  I'm only curious to perhaps predict the possible outcome of this situation.</p>

<h2>It will depend on the specific facts</h2>
<p>Let's define a few terms:</p>
<ul>
<li>Company A was the original company,</li>
<li>Company B is the current company (which may be the same as Company A or a different company),</li>
<li>Owner A was (and may still be) the shareholders of Company A,</li>
<li>Owner B are the shareholders of Company B,</li>
<li>the Business is the enterprise that was carried on by Company A and is now carried on by Company B,</li>
<li>the Domain is the licence from the Domain Name Registrar which may be owned by any of the above (except the Business because it's not a legal person).</li>
</ul>
<p>Owner A and Owner B might be an individual natural person or an individual company or a group of natural persons/companies.</p>
<p>Both the Business and the Domain are assets just like a car or office furniture that can be bought and sold independently of the Company that owns them.</p>
<ol>
<li>Who owned the domain registration?</li>
</ol>
<p>This might have been Company A in its own right or Owner A in which case Company A would be using it under some sort of licence, probably an implicit and undocumented one.</p>
<ol start="2">
<li>Was Company A or the Business bought?</li>
</ol>
<p>Both are possibilities, see <a href="https://law.stackexchange.com/questions/45276/is-it-possible-to-keep-assets-from-being-taken-when-a-company-is-bought-by-anoth/45300#45300">Is it possible to keep assets from being taken when a company is bought by another?</a></p>
<p>If the company was sold the Company B <em>is</em> Company A. If the business was sold then Company A is different from Company B.</p>
<p><strong>Company A owned the Domain and Company A was sold</strong></p>
<p>Company A/B continues to own the domain. There is no room for dispute here.</p>
<p><strong>Owner A owned the Domain and Company A was sold</strong></p>
<p>Owner A continues to own the domain but Company A/B retains the benefit of the licence. There is scope for dispute over the terms and duration of that licence.</p>
<p><strong>Company A owned the Domain and the Business was sold</strong></p>
<p>The terms of the contract would need to be consulted to determine whether the Domain was part of the assets that comprised the Business. There is scope for dispute here, see the  <a href="https://www.news.com.au/finance/business/retail/bega-triumphs-over-kraft-in-threeyear-peanut-butter-legal-stoush/news-story/df2424e15011e4fc792851c6121237fd" rel="nofollow noreferrer">Peanut Butter Wars</a> over whether trade dress was part of the business (spoiler, it was).</p>
<p>If it was, then Company B owns it even if it is legally still held by Company A - they would be holding it on trust for Company B pending legal transfer. There is no scope for dispute here.</p>
<p>If it wasn't, then one has to ask how has Company B been using it for 7 years? There is scope for dispute here. It's possible that they were using it under a licence, if so, what are the terms? It's also possible they have a <a href="https://www.lawadvisor.com/articles/how-to-fight-for-your-domain-name-in-a-domain-name-cybersquatting-dispute" rel="nofollow noreferrer">right</a> to it as a result of other IP they own, usually a trademark.</p>
<p><strong>Owner A owned the Domain and the Business was sold</strong></p>
<p>The terms of the contract would need to be consulted to determine whether the licence in the Domain was part of the assets that comprised the Business. There is scope for dispute here.</p>
<p>If it was then Company B retains the benefit of the licence. There is scope for dispute over the terms and duration of that licence.</p>
<p>If it wasn't, then one has to ask how has Company B been using it for 7 years? There is scope for dispute here. It's possible that they were using it under a licence, if so, what are the terms? It's also possible they have a <a href="https://www.lawadvisor.com/articles/how-to-fight-for-your-domain-name-in-a-domain-name-cybersquatting-dispute" rel="nofollow noreferrer">right</a> to it as a result of other IP they own, usually a trademark.</p>

<blockquote>
<p>Is the domain inherently included in the sale of the company?</p>
</blockquote>
<p>The things that are included in the sale from one party to another are what is included for the contract related to that sale - what does the contract say?</p>
<p>Also, what does the contract say about the former owners ongoing work for the website?  Typically this might be classed as a work-for-hire, or it might not be, so it depends again on what the contract does and does not say as to where the copyright for that website ends up.</p>
<p>Basically, its not necessarily a situation where the domain or website is obviously &quot;owned&quot; by the purchaser unless the contracts say so - if the contracts are mute on the specific matter then its going to take a court case to settle this based on general wording in the contracts.</p>
