A recent Federal Court case, Thomas International v Humantech  FCA 541 (link), piqued our interest because the Court made orders to compel the transfer of two domain names on an interlocutory basis (ie, before a final hearing). Usually, these kinds of orders are only made after a final hearing.
Thomas and Humantech were parties to an agreement under which Humantech could appoint distributors to market and sell Thomas’ products. Thomas purported to terminate the relationship after it discovered that a company related to Humantech was selling similar products in competition with Thomas’ products.
The parties then entered into settlement discussions. During those discussions, the Humantech companies undertook to transfer two domain names to Thomas, once the parties had exhausted their discussions. The parties could not agree on the terms of a new agreement. Thomas then sought to enforce the undertaking to transfer the domain names.
The Court applied the usual principles on the grant of interlocutory injunctions. It held that Thomas had a strong prima facie case for final relief based on the Humantech companies’ failure to comply with the undertaking. It also held that, in the circumstances, the balance of convenience favoured the transfer of the domain names. The Court therefore made interlocutory orders to compel the transfer of the domain names to Thomas, subject to undertakings to re-transfer them if ordered by the Court.
The Thomas case is not the typical dispute between persons with competing claims to a domain name. Nevertheless, the case shows that it is possible to obtain a transfer of a domain name on an interlocutory basis. A party in a domain name dispute should now consider whether it would be entitled to an interlocutory order and whether such an order would be appropriate in the circumstances.