Federal Supreme Court: Can a foreign company use a .de-domain?

In the case laid before the Federal Supreme Court (Bundesgerichtshof; BGH) the court primarily had to decide about the liability of the administrative contact of the domain dlg.de. However, in the obiter dictum, the court also held under which circumstances a foreign company is entitled to use a .de-domain.In general, the company – the same applies for any individual – first to register a domain can use this domain. Problems arise, if the domain name also is the name or company sign of an individual or a company and this individual/ company wants to use the domain for his/her own interest.

According to German law, the company/ individual bearing a name also is entitled to use this name as domain name and thus is entitled to register and use the respecitve domain. Exceptions are made, when two individuals/ companies bear the same. Then – according to the so called principles of the bearers of the same name (Recht der Gleichnamigen) – the rule “first come, first served” applies, meaning that whoever registered the domain first also is entitled to use the domain.

In the obiter dictum to the the case laid before the Federal Supreme Court (decision of December 13th 2012 – I ZR 150/11) the court now held, that the principles of the bearer of the same name also apply to foreign companies either, if their name or company sign is protected under German, or their name or company sign is protected under foreign law. In both cases, the foreign company is – without exception – entitled to use a generic top level domain such as .com, .org or .net. However, if the company’s name or sign is only protected according to foreign law (but not under German law), the company is only entitled to use a .de domain, if it can claim a legitimate interest in using this domain. Such an interest can for example be claimed, if German-language content is provided under the .de-domain.

Regarding the liability of the administrative contact, the BGH held that administrative contacts can generally not be held responsible when registering a large amount of domains and one of these domains infringes upon a third party’s rights. For an administrative contact to be held responsible according to the principle of liability for interference (Störerhaftung) facts of to indicate the risk of infringing a third party’s right by registering a certain domain.




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