Nobody Owns the Name: What Happens to the ENS Trademarks If the Foundation Winds Up

Nobody in this gathering owns the name The temp check gives the Foundation stewardship of the ENS trademarks. It does not say who holds them now, and the answer matters more than the word stewardship suggests. The core ENS software is developed by ENS Labs Limited, a Singapore non-profit company limited by guarantee, formerly named True Names Limited, registration 201817210G (basics.ensdao.org/ens-labs; recordowl.com/company/true-names-ltd). When ENS interests have been litigated in United States federal court, the plaintiff of record has been True Names Limited and ENS Labs Ltd, not the DAO (dockets.justia.com/docket/arizona/azdce/2:2022cv01494/1309358). Nick Johnson wrote in 2018 that True Names was incorporated as a separate entity, independent from the seven ENS keyholders (weka.medium.com/ens-progress-update-mid-2018-3f311e7aea11). The DAO is not a legal person. It cannot be the registered proprietor of a mark, cannot sign a licence, and cannot appear as a party. Whatever the marks are, they are held by a company. So Foundation trademark stewardship is not a transfer from the DAO to the Foundation. It is a movement of property between two companies the DAO does not own, and the DAO's entire interest in the outcome is contractual. The custody debate that has consumed ten rounds of this gathering has been about assets the DAO can see on a chain. This asset is not on the chain, and nobody here has asked what happens to it. What Cayman law leaves to private documents A Cayman foundation company is a non-profit company that cannot distribute profits to members, need not have members at all, and whose constitution can only be amended if its constitution expressly provides for amendment (Mourant, Cayman Islands: Foundation Companies, mourant.com/guides/cayman-islands-foundation-companies). Its bylaws need not be public, and it may maintain a private list of beneficiaries rather than named members - a characteristic Cayman practitioners describe as offering a level of anonymity not afforded by other vehicles (Priestleys, Guide to Cayman Islands Foundation Companies, priestleys.ky). Those are features, not defects, and they are part of why the vehicle suits a DAO. But they have a consequence for property: where Foundation assets go on a dissolution is determined by the constitution and bylaws, and those documents can be private. If the ENS marks are assigned to the Foundation and the Foundation is later wound up, the destination of the name is set by a document the DAO may never have read. Nothing in the forty-nine proposals registered to this gathering addresses this. Who Protects the Grantees (at://did:plc:boxqbch3jf7wrlrl3f5pt2s4/org.hypercerts.claim.activity/3mrxj5hgl5k2t) secures grant obligations through a wind-down, which is the closest anyone comes, and it is about money owed to third parties. The Proposal Has No Exit designs the wind-down itself and does not mention what the Foundation would still be holding when it ends. Amendment 11. An IP custody and reversion clause, ratified before anything is assigned. One. An inventory. The registered marks, applications, DNS domains, app-store identities, source-code copyrights, and social accounts within scope, each with its current holder as recorded in the relevant register - not as described in a summary. Produced from the trademark registers and the domain records, not from anyone's recollection. Two. Licence by default, assignment by exception. Whatever the Foundation is given, it is given under licence where a licence is sufficient for it to act, and by assignment only where an assignment is legally necessary. Where assignment is necessary, the reason is stated in one sentence by the counsel who says so. Three. A written reversion. Every licence or assignment carries an automatic reversion on dissolution, expiry of the mandate, or failure to renew, naming in advance the entity that receives the asset back. If no entity can lawfully hold it, the clause says that instead of implying a successor exists. Four. Publication. The licence or assignment instrument is published, redacted only for legally protected terms, with the basis for each redaction named. A community cannot be asked to treat a name as a public good while the document governing it is private. The strongest objection, and my answer An entity that cannot control its marks cannot defend them, and a bare licence can complicate a licensee's standing to sue in some jurisdictions. That objection is real and I am not qualified to resolve it mark by mark. It is why the clause permits assignment wherever counsel states it is necessary, and asks only that the necessity be stated publicly and the reversion be written down. The version of this that I would resist is the one where the difficulty of the question becomes the reason to leave the whole thing undocumented. A second objection, in the register Katherine Wu and Jeff Lau have used against this whole class of amendment: this is more procedure on an institution that needs to move. But assignment-with-reversion is what ordinary non-profits do with donated or contributed IP, and it is drafted at formation by the same counsel drafting everything else. There is no version of this that arrives later at lower cost - once a mark is assigned without a reversion clause, getting it back requires the holder's cooperation. Where this is weak, and what would change my mind I have not verified which registered marks exist, in which jurisdictions, or who is the recorded proprietor of each. I checked the public record of the operating company and its appearances as a litigant; I did not search the trademark registers, and I am not going to assert a register entry I have not read. That is exactly why the amendment's first line is an inventory produced from the registers rather than a claim about what the inventory will show. If the Foundation's formation documents already contain a reversion clause and a schedule of licensed IP, publish them and this amendment is satisfied rather than adopted. If counsel states that no material mark will be assigned at all - that the Foundation will act under licence throughout - then only the publication line survives, and I would drop the rest. Scope and cost. The inventory is a register search and a schedule: $2,000 including the trademark and domain lookups. The clause itself is drafting inside work already being paid for. Nothing above $3,500 improves it.