Parties, especially the buyer, to a merger or acquisition for which domain names represent a portion of the assets to be acquired should be aware of the pitfalls that accompany domain name transfers so as to address such issues in the relevant agreement. Although not specifically governed by statute under U.S. law, the transfer of domain names attendant to a merger or acquisition, as with any form of intellectual property, should be a careful undertaking with particular attention paid to the language concerning transfer therein. The transfer of ownership of a domain name should consist of at least three documents: Purchase Agreement, Registrant Name Change Agreement (if the domain name is registered with Network Solutions, Inc., or, if not, pertinent documentation issued by the relevant registry), and assignment agreement. The latter two documents may be set forth as exhibits to the Purchase Agreement.

The Purchase Agreement should make certain to address the intersection of domain names and trademark law. In addition to stating the intentions of the parties and transferring the domain name itself, all common law trademark, copyright, and other intellectual property rights related to the domain name should be subject to the transfer as well. Representations and warranties to the effect that the seller is the sole owner and that the subject domain name is not subject to any claims or actions should be made with indemnity provisions in favor of the buyer. The agreement should further prohibit the seller from registering or using a similar or related domain name. [163]

Specific reference to the Registrant Name Change Agreement (RNCA) should be made with an affirmative obligation for both buyer and seller to execute same. In most instances, the buyer is responsible for filing the RNCA with Network Solutions, Inc. (NSI), as should be explicitly set forth in the Purchase Agreement. For the buyer to be reflected as the owner of record on NSI's database subsequent to closing, the buyer will need to complete an email template provided by NSI that sets forth certain information such as administrative contacts, billing contacts, and server information. Upon completion of this template, NSI will furnish a "NIC" tracking number that should be incorporated into the RNCA before filing same. In addition to the standard notice issued by NSI confirming that the new owner of the domain name has been entered into its system, a check of NSI's "Whois" database may be worthwhile, as well. If the domain name is not registered with NSI, the applicable registry will provide details about domain name transfers.

Finally, a standard Deed of Assignment should be exhibited to the Purchase Agreement, further evidencing the transfer of title to the domain name. Although this document will not be filed and recorded with any specific governmental or regulatory authority, it should incorporate those issues not addressed by the Purchase Agreement and serve as a stand-alone document that evidences the transfer in case disclosure to a third party (e.g., tax authorities) is required, and the terms of the Purchase Agreement should be kept confidential.