The First Civil Senate of the Federal Court of Justice, which is responsible among other things for competition law, has ruled on the admissibility of a domain name that is deliberately registered in 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 through a typing error are redirected from there to a website on which private health insurance is advertised. The defendant receives a fee for each call to this website. The plaintiff claimed that it was being unfairly hindered by the defendant redirecting interested parties who wanted to access its website to another website and that its right to a name was being infringed at the same time. The plaintiff therefore sued the defendant for an injunction against the use of the domain name "www.wetteronlin.de", for consent to the deletion of the domain name, for the provision of information and for a declaration of liability for damages.
The Regional Court essentially sentenced the defendant as requested. The defendant's appeal was unsuccessful. The Court of Appeal held that the claims asserted existed both from the point of view of anti-competitive obstruction and because of infringement of the plaintiff's right to a name.
On appeal by the defendant, the Federal Court of Justice reversed the appeal judgment and dismissed the action insofar as the claims were based on the infringement of the right to a name. The Federal Court of Justice denied that the name "wetteronline" had the distinctive character required for the protection of a name because it was a purely descriptive term. wetteronline" refers to the plaintiff's business purpose of offering "online" information and services on the subject of "weather".
In contrast, the Federal Court of Justice assumed that the specific use of the "typo domain" from the point of view of intercepting customers violates the prohibition of unfair obstruction pursuant to § 4 no. 10 UWG if the user is not immediately and conspicuously informed on the opening internet page that he is not on the page "wetteronline.de". The Federal Court of Justice dismissed the application for consent to the deletion of the domain name "wetteronlin.de" based on unfair obstruction because a legally permissible use is conceivable and the mere registration of the domain name does not unfairly obstruct the plaintiff.
Judgment of the Federal Court of Justice of 22 January 2014 - I ZR 164/12 - wetteronline.de
Lower courts:
Cologne Regional Court - Judgment of 9 August 2011 - 81 O 42/11
OLG Cologne - Judgment of 10 February 2012 - 6 U 187/11, WRP 2012, 989
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
