By Shefaly Yogendra
In this column and the next couple of columns, I shall write about founder conflicts commonly encountered but not often easily resolved. Some are foreseeable e.g. what happens to the equity of a co-founder who ups and leaves, and hence addressable, e.g. in the case of this example, through a shareholding rights agreement for which you ideally paid a lawyer, who helped you understand what you were agreeing to.
Some arise from human beings being human beings, ranging from unpredictable and flaky, to stubborn and demanding. These conflicts are harder to resolve because they require us to think creatively, to minimise immediate and future damage to the startup, and to stay focused despite all provocation.
One of the most common disagreements arise from the ownership of things that founders may bring to the potluck called the startup, and that really are essential business assets. The social media real estate is sometimes acquired before the company has been formed. Getting handles on platforms aside, this may mean one of the founders, who may not yet legally be in a contract with other founders, pays for the domain name or names. In the hubbub of early days, the domain name ownership transfer never happens and the founder, who paid for it, continues to own the domain name.
Should he? The short answer to that question is: No.
The domain name is an intangible asset of the business, among other IP. The renewal incurs a recurrent cost. If the person makes the expense out of his pocket, he can solidify his claim on the domain name. If the company reimburses him this expense, it is further unclear why he continues to hold on to the domain. This creates a fog for accounting and governance purposes.
As the business grows, in revenue and in value, the domain name will also grow in value. But hey, if you didn’t effect a clear transfer of ownership, it doesn't belong to the company. How will it be accounted for in the books? At any rate the person owning the domain can hold you to ransom and play hardball at any time he likes. This is unlikely to end well.
Should the business wish to file a trademark on the name, the person holding the domain may be in violation of the trademark, assuming he lets you file trademark in the first place and doesn't stake a claim. See comment about hardball above.
Should you attempt to raise growth capital at some stage, this will come up and raise a red flag as to the vigilance of the directors and founders. See comment about hardball again.
Transferring ownership is the ideal scenario. But let’s imagine, other founders agree that he can continue to own the domain.
The company may then want to consider signing an agreement with him to let the business use the domain name. Such a deal will have an agreed monetary consideration and will hopefully be for a clear but renewable term. Your shareholding rights agreement should allow for such a deal, and as cofounders, you should consider the governance and risk impact of such a deal on the future developments in the business. If you don’t, your investors, if vigilant, will point out what a bad idea laxity on this account has been!
While this sort of a deal remains a possibility, you may want to consider negotiating a one-time offer to buy the domain off him instead. If there is resistance, I would ask you to consider the possibility that the domain name ownership issue is just an indicator of other undesirable issues that may arise in the future.
As cofounders, can apply this test of ownership to any other assets essential to the business that any of the cofounders brings to the table. It is worthwhile taking stock of “who brought what” at the time of forming the company and start with a clean slate where all assets are placed on the company’s books, with adequate compensation made as agreed.
The author is a decision-making specialist, and advises founders and CEOs on technology, risk, branding and talent. She can be found on Twitter: @Shefaly