Domain name law

from Wikipedia, the free encyclopedia

The trademark and domain name law began with the introduction of domain names instead of numbers ( IP addresses ) in 1983. domains form a hierarchical structure, which are separated by periods. At the top of this structure is the Top Level Domain (TLD).

The top-level domain is either a country code top-level domain (ccTLD) for one of the approximately 200 countries in the world (e.g. .ch) or a so-called generic top-level domain (gTLD) such as .info.

A single company (so-called registry), which has been authorized by IANA or ICANN , is responsible for managing a top-level domain . The German ccTLD, for example, is managed by the DENIC cooperative . Second-level domains can now be entered in these registries; this process is called domain registration . In general, the application of these addresses is performed by registrars, a role that usually from Internet service providers (Engl. Internet service provider, ISP) is perceived. These registrars in turn serve end customers.

A host name such as www or another part of the name separated by a dot in front of the domain name belongs to the administration area of ​​a domain.

Example: http://de.wikipedia.org/wiki/Domainnamensrecht

  • org = top-level-domain
  • wikipedia = second-level-domain
  • de, en, fr etc. = only host names that belong to wikipedia.org (also called subdomain or third-level-domain)
  • / wiki / Domainnamensrecht = subdirectories, a script and a search word - these components and the leading URI protocol type http: are not part of the domain name.

Law in Germany

A problem usually arises when the desired second-level domain has already been taken. This is often the case with over 15 million addresses with the ending .de. Reasons for this can be domain grabbing or the use of expired domains . Here the situation needs to be examined on the basis of domain name law. In the first rulings, the courts referred to DENIC's procurement guidelines. Here there was the concept of better rights. From these better rights, the following conclusion was drawn when it came to an address: A private person with this name had priority over someone who was not called that. A company with that name or a company with a registered trademark takes precedence over a person with that name. A city or municipality has the highest priority. Judgment by judgment, however, case law has also recognized that the domain name has a name-like use. Today's legal disputes are primarily about taking action against the misuse of a domain name because it contravenes the right to name according to § 12 BGB , company name law HGB or trademark law. So the argument is increasingly based on the law. The options for enforcement range from a polite request, warning to legal action. There are lawyers who have therefore fully specialized in trademark and domain name law. Another important aspect is that it can violate the law against unfair competition ( UWG ) to acquire names only for the purpose of blocking or selling them to the person concerned. As a result, first come first serve does not necessarily apply.

Within these disputes, there is also reverse domain hijacking (a trademark is registered in order to steal someone's address) or trademark grabbing . When it comes to addresses for the German TLD, DENIC has issued the guideline that an authorized representative must be named in Germany or that the owner must be based in Germany. A chargeable address must be deposited in each case, if this is not the case or the address is incorrect, the domain can be deleted. This is how legal disputes can be resolved in Germany.

A sensible step is to have a so-called DISPUTE entry set up at DENIC. The current owner cannot then have the domain transferred to a new owner. In the event of a deletion, the domain falls to the person who was the first to set up a DISPUTE and then actually wants to take it over. DENIC never decides the disputes itself. To avoid misuse, proof of a legitimate interest in a DISPUTE is required (e.g. copy of identity card, copy of an extract from the commercial register, proof of a trademark application).

In the case of international domains (e.g. .com, .net), proceedings according to the Uniform Domain Name Dispute Resolution Policy (UDRP) before out-of-court arbitration bodies (e.g. the WIPO) are an alternative to disputes before the state courts. There is a similar procedure for .eu domains under Article 21 of Regulation (EC) 874/2004. In these out-of-court proceedings, the applicant (corresponds to the plaintiff) can not only achieve the deletion, but under certain circumstances also the transfer of the disputed domain.

Domains are rights and as such can also be attached.

Law in Switzerland

The administration and allocation of domain names is regulated in the telecommunications sector (AEFV). The details are described in OFCOM's regulations (TAV) . In the event of a dispute, the naming law (ZGB 29), the fair trading law (UWG) and the trademark protection law (MSchG) apply.

Important judgments on domain law

  • "Heidelberg.de" , LG Mannheim, judgment of March 8, 1996, Az .: 7 O 60/96 ("the use of an Internet address can violate the right of a third party to name.")
  • “Das.de” , LG Frankfurt, judgment of February 26, 1997, Az .: 2/06 O 633/96 (“the disputing of the right to a name can take place through any behavior from which it can be seen that the right to a name of the person entitled objectively contradicts. A domain address also has a name function ")
  • "Krupp.de" , OLG Hamm, judgment of January 13, 1998, Az .: 4 U 135/97 ("injunction claim")
  • "Rechtsanwaelte.de" , LG Munich I, judgment of November 16, 2000, Az .: 7 O 5570/00 (abuse of generic terms, competition law)
  • "mitwohnzentrale.de" , BGH, judgment of May 27, 2001 - I ZR 216/99: Descriptive term as a domain name
  • "shell.de" , BGH, judgment of November 22, 2001, Az. I ZR 138/99 (paramount importance of a well-known brand name)
  • "Sartorius.at" , LG Hamburg, judgment of December 10, 2004, Az .: 324 O 375/04 (meaning of country code top-level domains, here ".at")
  • "hufeland.de" , Federal Court of Justice, judgment of June 23, 2005 - I ZR 288/02: Right to name in the case of identical names
  • Seizure of an Internet domain BGH decision of July 5, 2005, AZ: VII ZB 5/05 (seizure of an Internet domain)
  • "solingen.info" , BGH, judgment of September 21, 2006 - I ZR 201/03: Name of a regional authority together with the top-level domain "info"
  • "kinski-klaus.de" , BGH, judgment of October 5, 2006 - I ZR 277/03: A person's right to a name expires with death
  • "Grundke.de" , BGH, judgment of February 8, 2007, Az .: I ZR 59/04 (Admissibility of fiduciary domain registration)
  • "Neu.eu gegen neu.de" , LG Munich I, judgment of February 27, 2007, Az .: 9HK O 17901/06 (The dispute over descriptive domains continues with Eu domains - alleged trademark owner is subject)
  • LG Stuttgart, judgment of September 26, 2013 (right to transfer for .eu domains)

See also

Web links