The First Civil Senate of the Federal Court of Justice, responsible inter alia for competition law, has ruled on the admissibility of a domain name that was deliberately registered with an incorrect spelling of an already registered domain name.
The plaintiff operates a weather service on the internet under the domain name "www.wetteronline.de". The defendant is the owner of the domain name "wetteronlin.de". Users who reach the defendant's website due to a typo are redirected from there to a website advertising private health insurance. The defendant receives remuneration for each visit to this website. The plaintiff asserted that by redirecting interested parties who intended to visit her site to another website, the defendant unfairly hindered her and simultaneously infringed her name rights. She therefore sued the defendant for cessation of use and consent to the deletion of the domain name "www.wetteronlin.de", as well as for the provision of information, and sought a declaration of liability for damages.
The Regional Court largely ruled against the defendant as requested. The defendant's appeal was unsuccessful. The Higher Regional Court found that the asserted claims were valid both on the grounds of anti-competitive hindrance and infringement of the plaintiff's name rights.
Upon the defendant's appeal on points of law, the Federal Court of Justice overturned the appellate judgment and dismissed the action insofar as the claims were based on the infringement of name rights. The Federal Court of Justice denied that the designation "wetteronline" possessed the distinctive character required for name protection, as it is a purely descriptive term. "Wetteronline" describes the plaintiff's business purpose, which is to offer "online" information and services on the topic of "weather".
In contrast, the Federal Court of Justice found that the specific use of the "typo domain" violates the prohibition of unfair hindrance under Section 4 No. 10 UWG, from the perspective of intercepting customers, if the user is not immediately and unmistakably informed on the opening website that they are not on the "wetteronline.de" site. The Federal Court of Justice dismissed the application for consent to the deletion of the domain name "wetteronlin.de", which was based on unfair hindrance, because a legally permissible use is conceivable and the mere registration of the domain name does not unfairly hinder the plaintiff.
Judgment of the Federal Court of Justice of January 22, 2014 – I ZR 164/12 – wetteronline.de
Lower Courts:
Regional Court Cologne – Judgment of august 9, 2011 – 81 O 42/11
Higher Regional Court Cologne – Judgment of February 10, 2012 – 6 U 187/11, WRP 2012, 989
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
