The Higher Regional Court of Frankfurt am Main (OLG Frankfurt a. M.), in its judgment of April 29, 2008 – Case No.: 11 U 32/04 – ordered DENIC eG to register the second-level domain name 'VW' under the top-level domain '.de' in favor of the automobile manufacturer Volkswagen (VW).
Until now, DENIC eG had consistently and successfully refused to register two-character '.de' domains. DENIC eG serves as the central registry for all domains under the top-level domain '.de'.
The automobile manufacturer VW demanded that DENIC eG register the domain name 'VW.de'. DENIC rejected this, citing concerns about internet operational security. VW's claim was also dismissed by the District Court of Frankfurt am Main.
VW's appeal was successful. The Higher Regional Court of Frankfurt am Main attributed a dominant market position to DENIC within the meaning of Section 19 (2) No. 1 GWB. According to the Higher Regional Court of Frankfurt am Main, the right to allocate a two-character ".de" domain arises from Section 20 GWB. The judges deemed the unequal treatment compared to other automobile manufacturers, such as BMW, which can appear on the internet under a domain name containing their company designation (http://www.bmw.de/), as unjustified. In the judges' opinion, it cannot be argued that DENIC, in accordance with its guidelines, does not allocate second-level domains consisting of only two letters, as in the present case. Therefore, the Regional Court was also correct in assuming that there was unequal treatment of the plaintiffs from VW in relation to those automobile companies whose brand was registered as a second-level domain under the top-level domain ".de". Only an objective reason could justify this unequal treatment. Whether an objective reason justifies unequal treatment within the meaning of Section 20 (1) GWB must be decided based on a comprehensive balancing of interests related to the individual case. It must be assumed that the addressee of Section 20 (1) and (2) GWB can also shape their entrepreneurial conduct as they deem economically correct and reasonable (BGH GRUR 2003, 893), although arbitrary conduct should not be privileged. Furthermore, the competition-restricting measure of the addressee must be objective, appropriate, and reasonable, which primarily requires consideration of the principle of proportionality and thus the choice of the least restrictive means.
In this context, the Higher Regional Court of Frankfurt am Main determined that a claim to a second-level domain would only not exist if a corresponding top-level domain with the same two letters as the desired two-character ".de" domain already existed. Therefore, as long as there is no top-level domain ".vw", DENIC is obliged to register the domain http://www.vw.de/.
Due to this decision by the Higher Regional Court of Frankfurt am Main, it is likely only a matter of time until other companies and firms demand the registration of a two-character ".de" domain from DENIC and, if necessary, assert this claim through legal action.
Attorney Michael Ullrich, LL.M. (Information Law)
Goldberg Attorneys at Law – Wuppertal, Solingen 2008
