11. March 2014
In the coming weeks and months 800 top level domains will be created. Numerous new addresses will be made available to website operators. However, there are various aspects under German law to consider when registering a domain name. Here is an overview.
Registering a domain name
The central domain registry, DENIC e.G., is responsible for allocating and operating all top level domain names in Germany. Organisations or commercial entities called domain name registrars (providers) are then responsible for actually registering and reserving domain names.
German contract law
There are therefore two contracts to consider when registering a domain.
1. The domain registration contract: When a domain is registered through DENIC e.G., a contract between the registry and the owner of the domain name automatically comes into existence. The contract states that DENIC is required to connect the domain and must enter it in the WHOIS index.
2. The registrar contract: this contract governs the completion of registration by the registrar.
Beware of trademark infringements
Before registering a domain name, a check should be made on whether it contains the trademarked brand name or company name of another business. The desired domain name should differ from any existing domain/brand names.
Both the ending of the domain name (i.e. top level domain such as “.com” or “.de”) and the domain name itself (second level domain) should be scrutinised.
If the domain is that same as an existing business’ trademark, it is important to either obtain consent to use the terms or to change the desired domain name. Failure to do so would result in a trademark violation. Such a violation could result in costly warning letters being received. In addition, a competition infringement may arise. This is the case with so-called typosquatting.
Particular problem of typosquatting
Typosquatting is the use of a domain similar in nature to a known domain name in order to lure users to website after incorrectly entering the intended website name, for example through a spelling mistake.
In its case law, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) has stated that typosquatting will violate§ 4 no. 10 of Germany’s Unfair Trading Act if users’ attention is not immediately and clearly drawn to the fact that the website they are on is not that which they originally searched for.
As a result of this case law, those who operate a typosquatting domain and do not sufficiently distinguish their website risk receiving warning letters.
There is, however, no right to apply for the typosquatting domain to be deleted. This is because it cannot be rule out that the domain is being used legally and simple registration in itself does not violate competition law.
Who is responsible for legal infringements?
If a domain name breaches the law, it is generally the owner who registered the domain who is responsible. One exception to this general position is if owners of domain names do not offer content directly, for example if they operate file hosting service.
However, in recent times the BGH has tightened the rules on the liability of file hosts. If operators of file hosting services are warned about legal infringements, such as trademark or copyright violations, they are required, not only to remove the violation, but also to examine at regular intervals online link collections leading to the service (judgment from 15.08.2013, case ref. I ZR 80/12).
Liability of Admin-C
Domain name infringements
The Admin-C (the administrative contact person for the domain) who is entered in the WHOIS index, is not necessarily liable for legal infringements caused by a domain name. Provided the person fulfilled the obligation to examine the proposed domain name for possible trademark infringements prior to registration, they will escape liability (judgment from 13.12.2012, case ref. I ZR 150/11).
Whether the Admin-C can be held liable for legal infringements found in the content of the domain is disputed in the case law.
A sizeable number of courts accept that Admin-Cs can be held liable from the point at which they obtain knowledge of the infringing content (Regional Court Potsdam, case ref. 2 O 4/13). Other courts reject liability, arguing that Admin-Cs appear at the registry only as a result of internal organisation and are not responsible for the content on the website (Higher Regional Court Hamburg, case ref. 7 U 137/06).
A registrar that obtains knowledge of a legal infringement after registering an internet domain can be held liable for the violation. Registrars who receive such information, are obliged to investigate and if necessary block the domain (Regional Court Saarbrücken, judgment from 15.01.2014, case ref. 7 O 82/13).
The reason for this, according to the court, is that “…through registering the domain, the registrar contributed in an adequately causal way to the website operator and the visitors of the domain committing [legal] infringements…”
Various legal aspects must be considered when registering a domain. Before registering a domain, it is highly advisable to seek legal advice and undertake a thorough examination of any possible legal violations.
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Categories: Internet Law