The Higher Regional Court of Frankfurt a. M. (OLG Frankfurt a. M.) ruled on 29 April 2008 - Ref.: 11 U 32/04 - that DENIC eG should register the second-level domain name "VW" under the topâ??levelâ??domain ".de" in favour of the car manufacturer Volkswagen (VW).
Until now, DENIC has always successfully refused to register two-digit ".de" domains. DENIC is the central registry for all domains below the top-level domain ".de".
The car manufacturer VW demanded that DENIC register the domainâ??name "VW.de". DENIC refused, citing operational security on the Internet. VW's claim was also dismissed before the Regional Court of Frankfurt am Main.
However, VW's appeal was now successful. The Higher Regional Court of Frankfurt a. M. found DENIC to be in a dominant position within the meaning of Section 19 (2) No. 1 of the ARC. According to the OLG Frankfurt a. M., the claim for the allocation of a two-digit ".de" domain results from Section 20 GWB. The judges considered that the unequal treatment compared to other car manufacturers, such as the car company BMW, which can appear on the Internet under a domain name containing their company name(http://www.bmw.de/), was not justified. In the judges' view, it also cannot be based on the fact that DENIC, in accordance with its guidelines, does not award second-level domains which, as in the present case, consist of only two letters. Therefore, the Regional Court was also right to assume that there was unequal treatment of the VW plaintiffs in relation to such automobile companies whose trademark was registered as a second-level domain under the topâ??level domain ".de". Only an objective reason could justify this unequal treatment. Whether an objective reason justified unequal treatment within the meaning of Section 20 (1) ARC had to be decided on the basis of a comprehensive weighing of interests related to the individual case. In doing so, it must be assumed that the norm addressee of Section 20 (1) and (2) ARC is also entitled to structure its entrepreneurial conduct in such a way as it deems economically correct and reasonable (BGH GRUR 2003, 893), although arbitrary conduct must not be privileged. Furthermore, the measure of the norm addressee restricting competition must be objective, appropriate and reasonable, which primarily requires the consideration of the principle of proportionality and thus the choice of the middle means.
In this context, the Higher Regional Court of Frankfurt a.M. found that a claim to a second-level domain would at most not exist if a corresponding top-level domain existed with the same two letters as the desired two-character de domain. As long as there is no top-level domain ".vw", DENIC is therefore obliged to register the domain http://www.vw.de/.
As a result of this decision by the Higher Regional Court of Frankfurt a.M., it should only be a matter of time before other companies and firms demand the registration of a two-digit "de" domain from DENIC and, if necessary, take legal action to enforce it.
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Goldberg Rechtsanwälte - Wuppertal, Solingen 2008
