Domain law

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Under domain law a number of different legal regulations are for the allocation of Internet domains understood. It is not codified in its own law , but has developed through case law in various areas of law.

The second-level domains are generally assigned according to the priority principle ("first come first serve" = "first come, first served"). Neither Internet service providers nor the central registration offices such as DENIC for the .de domains check the legal implications of a domain registration . As a result, the relevant legal areas must be checked by a professional domain applicant before registering with Denic or a provider. These include naming law , trademark law and competition law .

The practical value of a coherent domain name often leads to willful abuse. Cybersquatting , typosquatting and brand grabbing are associated with domain grabbing .

Legal situation in Germany

For final clarification in the event of disputes, the entitled claimant can refer to §§ 14, 15 MarkenG and, as the name holder, to §§ 12 BGB and §§ 823, 1004 BGB, § 826 BGB, depending on the case constellation. Although the claims have basically similar prerequisites, they have very different implications: For example, a declaration of intent to delete the infringing domain can be required in the case of a claim from § 12 BGB, but only the omission of the use of the Domain in business dealings. Domain names that do not correspond to a company name or brand can be used as a special business name in accordance with Enjoy protection according to § 12 MarkenG.

The key judgments include:

  • shell.de (BGH, judgment of November 22, 2001, file number I ZR 138/99):
    Even the registration, not just the use of a third-party company name as a domain name in non-business transactions, constitutes unauthorized use of the name according to § 12 BGB. If an unauthorized person uses a known label as a domain name in business dealings, this is an impairment of the distinctive character of the known label according to Section 14 (2) No. 3 or Section 15 (3) of the Trademark Act. If several authorized bearers of names come into consideration for a domain name, the balancing of opposing interests, which is required in cases of the same name, generally means that the priority of registration is no longer there. The owner of the domain name can only be obliged if one of the two bearers of the name is well known and the traffic expects his Internet presence under this name, but the owner of the domain name cannot show any particular interest in this Internet address to add a distinguishing addition to his name in the Internet address.
  • maxem.de (BGH, judgment of June 26, 2003, Az. I ZR 296/00):
    Registering a foreign name as a domain is a name presumption. A pseudonym known in the traffic enjoys name protection.
  • Peek & Cloppenburg (BGH, judgment of March 31, 2010, file number I ZR 174/07): There is also a risk of confusion when two companies at different locations use the same name. The companies must indicate on their websites that there are two companies with the same name in different locations.

A question of detail is the assessment of the amount in dispute.

The Düsseldorf Regional Court decided in 2006: ( LG Düsseldorf , decision of January 25, 2006, Az. 2 O 267/05 - wahltipp.de) “In trademark disputes, the economic interest of the proprietor of the property rights is decisive. The economic interest in enforcing injunctive relief due to trademark infringement is determined by two factors, namely firstly by the economic value of the infringed trademark and secondly by the extent and danger of the infringement. Many factors can be decisive for the market value of the infringed trademark law, in particular the duration and extent of previous use, degree of awareness and reputation of the trademark with customers and the public, degree of original distinctiveness, etc. "

Examples:

  • 25,000 €: Cologne Higher Regional Court, "mahngericht.de"
  • € 50,000: Hamburg Regional Court , judgment of February 3, 2004, Az. 312 O 448/03
  • € 50,000: Düsseldorf Regional Court, judgment of August 11, 2004, Az.2a O 35/04
  • 135,000 €: Cologne Higher Regional Court, judgment of July 9, 2004, Az. 6 U 166/03
  • 500,000 €: District Court Düsseldorf from September 17, 1997, Az. 34 O 118/97 "crrtroinc.de"
  • € 500,000: Hamburg Regional Court, order of July 14, 1997, Az. 315 O 448/97; "D-info"
  • 500,000 €: Mannheim Regional Court, decision of October 17, 1997, "zwilling.de"

Legal situation in Austria

The Supreme Court in Austria first dealt with domain law, in particular domain grabbing, in 1998 (Jusline - 4 Ob 36 / 98t). The Supreme Court stated that the basic function of domain names is to be affirmed in analogy to the case law on the protection of telex codes. Subsequently, domain names that appear to have been named were allowed to have a labeling function (ortig.at - 4 Ob 320 / 99h). In the years 2000 and 2001 it was decided that domain names should be subject to the unfairness requirement of competition law (gewinn.at - 4 Ob 158 / 00i) and that the principles for risk of confusion developed in general trademark law should also be used when assessing collision cases involving a domain or between domains are (pro-solution.at - 4 Ob 73 / 01s). In Austria, according to current case law, there is no right to transfer a domain (omega.at - 4 Ob 226 / 04w). However, a more recent decision by the Supreme Court reveals, if read critically, that this could at best be revised (3 Ob 210 / 10v).

See also

Individual evidence

  1. ↑ BGH, judgment of April 28, 2016, Az .: I ZR 82/14
  2. ^ BGH, judgment of November 22, 2001, file number I ZR 138/99, shell.de ( online )
  3. ↑ BGH, judgment of June 26, 2003, Az. I ZR 296/00, maxem.de ( online ; PDF; 56 kB)
  4. ^ LG Düsseldorf, decision of January 25, 2006, Az. 2 O 267/05 - wahltipp.de ( online ; PDF; 112 kB)
  5. ^ OGH decision text RIS

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