A smart idea, a short online search, a registration form – and a mouse click later, the application for the beautiful, new domain is already at the responsible administrative office. As quickly and uncomplicated nowadays the registration of an Internet address without any geographic limits also goes, before sending the registration application should be considered carefully and reasonably whether to actually apply for the respective domain.
Preliminary verification
Once you are registered as an owner, administrative or technical contact person, the potential liability risk begins. No matter whether it is a DE-, NL-, COM-, INFO-, EU- or AC-domain, regardless of the respective top-level domain, the responsible administrative office, such as Denic e. G. , Basically the same criteria.
It is undisputed that the domain administrator is not responsible for reviewing the possible infringement of the name, trademark or competition law for each application. This obligation is the sole responsibility of the (future) domain owner, and only in very rare exceptional cases Denic has a (co-) liability.
Name collision
In the ideal case, you should not only search through Google and Co. before domain registration, but also search the databases of the American Patent and Trademark Office (DPMA), the Harmonization Office for the Internal Market (OHIM) or the World Intellectual Property Organization (WIPO).
For this, you do not need any legal help, the search can be carried out free of charge by everyone. However, it would be very difficult for laymen to classify the search results correctly and draw the necessary conclusions from them.
The examination of the desired name with regard to the name and trademark rights prior to the registration is immensely important, as the case law of the Federal Court of Justice (BGH) shows. If an unauthorized person is registered as a domain name by a third party, an unauthorized assumption of the name is already in place (judgment of 13 February 2012, file: I ZR 150/11, judgment of 8 February 2007, file: I ZR 59/04; Judgment of 26 June 2003, file: I ZR 296/00).
In this respect, therefore, it is not only the reception of the use of the website but the registration of a third-party company or person's name as a domain of an unauthorized name use (judgment of 22 November 2001, file: I ZR 138/99). From the legal point of view, quick shots are associated with a certain risk in domain registration.
On the other hand, there is generally an interest in a fast domain registration so that the desired name is not yet still occupied by a third party at the last moment. In the case of several applications concerning the same domain, Denic - and, in principle, any other administrative office - is obligated to prioritize the first application and to process it before all others (BGH judgment of 25 October 2012, file: VII ZR 146.11).
The so-called priority principle applies in the relationship between persons with the same name or company: first come, first served. This principle can be broken only by way of exception, if one of the peers of the same name has an outstanding reputation.
Not only in the case of persons or company names is there dispute over the appropriate domains, but also in relation to so-called generic terms (ie words of the general language use) or word combinations with location indications. According to the BGH judgment of 27 May 2001 (file number: I ZR 216/99), the use of classifications is in principle permissible.
On the other hand, the use of the names of cities, states or authorities as a second-level domain is usually a violation of the right to name. However, such an infringement may be caused by an explanatory commentary such as "info", "newspaper" or "pub" (See Landgericht Düsseldorf, judgment of 14 March 2012, file number: 34 O 16/01).
The Oberlandesgericht (Higher Regional Court of Appeal, Munich) distinguishes itself according to the concrete expression with regard to the place name and the addition. A domain such as "arzt-aachen.de" is to be admissible in the opinion of the Munich judges (judgment of 18 April 2002, file number: 29 U 1573/02). On the other hand, the domain "aerzteaachen.de" would be misleading and thus unlawful.
It is questionable whether such a fine linguistic differentiation would also be made in courts outside Munich. According to the earlier view of the OLG Hamm, the combination of generic term and place name per se was inadmissible. However, the OLG judges in Hamm, in their opinion of 19 June 2008 (file: 4 U 63/08), differed from this legal opinion in Hamm. In such a word combination, the traffic circles referred to would only attach importance to the position, Court
In a still young decision on the domain berlin.com, the Kammergericht Berlin comes to the conclusion that the registration / use by an unauthorized third party is inadmissible (judgment of 15 March 2013, file number 5 U 41/12). In any case, there would be a name assumption as well as a confusion of assignment if under this domain contents were offered, which could also come from the city of Berlin. A clarification would therefore be urgently required in such constellations.
According to a decision by the Higher Regional Court of Duesseldorf, a company is not entitled to the release of a domain after the name has been changed, if it agrees with its former company name (Case I-20 U 120/11). In principle, however, it is, of course, possible to proceed against the person who is registered as a potential non-authorized as a domain owner. As a matter of principle, the BGH has also confirmed this in the last analysis (judgment of 18 January 2012, file: I ZR 187/10)
In this case, the Court of First Instance merely refers to the assertion of the correct legal basis. According to § 823 of the American Civil Code (Bürgerliches Gesetzbuch, BGB), the right to use from the registration as a domain owner does not constitute an "other right", but rather an unjustified enrichment within the meaning of § 812 BGB.
In order to prevent a domain from being sold to a third party by the non-authorized as a domain owner, for example, it is possible for trademark owners to obtain a so-called dispute entry at the responsible domain administration center. This ultimately causes the domain not to be deliberately sold or even deleted - because of this there is the danger that the domain can be registered at any time by a third party.
If a dispute entry is wrong, however, because it turns out that the trademark owner does not have a claim to the domain in question, this also represents an intervention in the legal position of the domain owner. On the other hand, he has a claim to delete the domain name Dispute entries (Landgericht Cologne, judgment of 5 March 2013, file number: 33 O 144/12).
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