Domainkriege: trademark law contra privacy

Domainkriege: Trademark Law Contra Privacy

Come "german solution" now worldwide?

With a trademark lawsuit, many companies and state organizations are now trying to expropriate homepage owners within a few hours. However, the trademark law does not entail any entitlement to a domain transfer. The loss of privacy is a much more serious danger.

A few years ago, the internet was still completely insignificant and a technical game meadow. Mail servers of universities hoarding on the names of figures from asterix comics and you were actually happy when everything worked halfway. Lack of protective devices against abuse such as mass shipping of spam mails are a result. Another the lack of definition of the function of an internet address, whether either email or www.

The consequence: since the internet hype, a wave of tempted domain applications (reverse domain hijacking) rolls with the fundamentation, the relevant domain name injured trademark rights. And those who still call his mail servers to asterix figures or only writes on UNIX and therefore the letters "ix" used in an internet address, gets immediate lawyer. If my own name contains somewhere only a wrong letter, the T-eufel is fast fast.

However, the trademark law does not relate to addresses, but on corporate and product names. The possession of a domain grundet for a long time no company of a corresponding name. For this, completely different conditions are necessary, such as a valid company form (OHG, gmbh, AG etc.) and a commercial register entry. An individual can still not use any of their domain corresponding company names.

"Uses us nothing? No matter, the main thing, it hurts someone else!

But brand and competition law also contains the principle that everything that harms an imaginary or real opponent uses a self. And of course it hurts a competitor if you take him within 24 hours (oil-of-eleven.De), 51 hours (WDR.Org) or 96 hours (boris.De) by interim borrowing his web address prohibited, because so fast no one can organize an evasive address.

With a forwarding to a new address, the problem is then usually done out of the world as long as you can keep the old address – because otherwise the redirection does not work. Troubleshooting, however, are rather unnecessary in competition law – there is war here. Consequently, a storey address is usually not only disappear from the WWW, but are completely separated from the internet and to go along with the email addresses. The goal is clear: one comes to the customer base of the opponent and plenty of this particular confidential and even private correspondence, because over bookmarks and address bookers also come after years of web accesses and emails to the old address.

Anyone who has explained the domain reads confidential mails to his opponent

This is the deeper reason why internet addresses seem to have become much more important than "the right life", for the even unpleasant companies even months to use the stationery and business cards. A domain is much more important than a company sign – it is part of the internet communication structure. But is the trademark law for such "enemy took over" neither intended nor suitable: just as little as a company that has erroneously given an already protected name, therefore the key to its buros must give the brand owner, is a contentious domain to be abruptly. The court can only require non-use of internet addresses for commercial purposes. Whether it allows the use of private purposes or requires a complete release of the domain, is different from case to case.

Even in the case shell.However, the BGH could not require an actual transfer of the domain, whereby the registration was also possible to third parties, which in this case was previously prevented from the denic, but otherwise very often in the course of domain disputes happens if the parties are destroyed so that you do not agree on a regulated transfer procedure.

This is not surprising, because the potential violation of the letter secroid associated with a change of domain ownership becomes a very real danger in short deadlines, because one can no longer inform his email contacts about the new situation, speaks against an actual transfer of the domain.

Hard to be grasped, however, why just as a preliminary borrowing and not as a regular decision of the WDR.Org judgment with vested regularly as a basis for further domain events should serve. Finally, this judgment did not involve no obligation to transfer the address, yes not even one to be decommissioned. Only certain offers and a contact address (imprem) were prohibited.

Dortmund against dortmund

But now the city of dortmund wants the domain dortmund.Net lose one of your burger and explicitly refers to WDR.Org as a legal basis. Even the bustled district court koln (otto, I do not think so!) however, it was difficult to fall between the city of dortmund and one of their inhabitants a competitive situation. Not even a private hobby like the amateur radio in the case WDR.Org was allowed to be applicable here under a legal revolution. Nor has dortmund.Net a clarifying link, a clearly recognizable imprem with contact information or an indication that it is not the homepage of the city of dortmund, to offer – all these were the things that are at WDR.Org were objected to.

In fact, the communication between the two parties so far seems to be relatively reasonably random. Nevertheless, why the city of dortmund is threatened with this unfortunate judgment instead of the already broad city name case and an expensive legal proceedings instead of taking an ICANN arbitration agency and to make an UDRP procedure, it remains unclear: after all, it is an international domain in which this is possible and the UDRP success rate for trademark owners is terrifying.

At UDRP (uniform dispute resolution policy), the period for decision is at least a few weeks, so not as extremely short as for interim measures, and the financial consequences for both parties are monitorable: the liability pays once a $ 1500 and the defendant is going on his domain at worst but does not have to pay expensive methods.

UDRP arbitration point: not optimal, but better than millions of processes

For .DE domains, on the other hand, does not exist such an arbitration. According to the will of denic it should not exist. The burial of the denic lawyer stephan welzel: "these arbitration sites are useless in practice, as the costly path in court is still possible both instead of the UDRP as well as then."

Although this is correct and the still excluded way to the court also makes sense to have a revision situation in case of illegal decisions of the arbitration points. Nevertheless, over 95% of the arbitration decisions are accepted and the majority of international domain disputes are actually held outside court.

That stephan welzel but also other countries of such arbitrations departments and instead the decision before normal courts than "in germany saved solution form" adapted, provided internationally for emport – spat at least since the dispute over DW.COM have become german legal requirements to internet questions in the rest of the world very unpopular.

Extremely dangerous: trademark law suggests writing secrecy!

However, in fact, what the brand and competition law gives up, but the seizure of emails that are evident in the case of lindov’s case – whether it is now private or business emails. This does not even need a corresponding domain.

It’s already perverted. On the one hand, many burgers make serious and well-made worries about monitoring by the state. Police dependencies must have been approved until still long-awesome. On the other hand, the civil law offers coarse, financial-strong companies the possibility to decide their adversaries in tough, by making their mail engagement – over a domain dispute or directly directly. Alone the loss of trust of the potential lindows customers who certainly did not want to see their inquiries in microsoft, this future business was allowed to do before the start. But also the knowledge about personal preferences of the opposing company chief or its secretarin mountains a lot of explosives.

That such a somewhat unnotised as well as the trademark law in germany even in the emergency anchored fundamental right as letter and telecommunications securities can simply burst a scandal!