Acquiring a .com Domain once you incorporate?

[iKwak]

Hello webmasters,

I am in the process of incorporating a small business for someone. The domain address for the .com and .net is registered by another party and it seems unlikely that they will sell the domain.
The reason being, the .com is owned by NetIdentity and the .net is owned by a foreign member.

I remember reading somewhere that there is a process where the business owner has a possibility of acquiring the registered domain if her/his business is incorporated.

Doing some research on this via Google.
Do you know any relevant websites that can help on this particular case?
Thanks in advance. :)

[activeco]

That's called reverse hijacking and usually considered as extremely unethical, to say at least.

Even with a (newly registered) TM and a good lawyer, the chance to get a name in such a way is very close to zero.

[tedster]

I agree, activeco. Although I am far from a legal authority, the little bit that I do know says that the prior use established before your client ever incorporated will trump even a brand new registered trademark (if they can even get the TM, given the situation).

[iKwak]

Ah, I just learned something new, reverse hijacking. Thanks.

I'll look for an alternative.

[davezan]

Your only possible alternatives are either to try to negotiate for the name or just get a
new one.

If you want a most recent example of reverse hijacking, lookup this [arbiter.wipo.int] one.

[luckychucky]

Well, hang on there a second.

IF your client can show that it had been using the name for many years in interstate commerce prior to incorporation- by advertising the name and printing it on invoices and product labels, say, and your client is longstandingly known by that name in the trade- if this usage predates another party's domain registration in the USA, and if the name is creative, unique and not merely a generic combo of ordinary words, then your client might have a case for snatching it away from the registrant.

Mind you, it always costs a fortune in legal fees no matter what you do. When it escalates it's always a long, drawn-out nightmare argument over grey areas in legal precedent because the law is never clear on anything, ever. And every time your lawyer sneezes or ties his shoelaces, it's another $300 added to your bill. Nonetheless there could be grounds for a legit fight if that condition of prior usage off-Net by your client exists.

Federal registration strengthens a mark, but trademark rights exist by default as long as there is prior usage in interstate commerce, even without official registration.

Just throwing it out there.

[nativenewyorker]

UDRP rules also state that you have to prove the registrant registered the domain in bad faith.

Since your intention is to incorporate a business, it sounds like the business is new. If that is the case, proving that the registrant registered the name in bad faith will be nearly impossible.

Disclaimer: I am not a lawyer.

[luckychucky]

A business can operate for a long time before deciding to incorporate. Incorporation can be costly and can be a little complicated paperwork-wise to establish and maintain. Incorporation doesn't always make good sense, until you reach a certain level of sales volume, potential legal liability, taxation, etc.

I don't know details of iKwak's client's situation, but it isn't necessarily so, that a business thinking of incorporating need always be a brand new business.