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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
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Christian Tenkhoff
Fidel Porcuna
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Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
MONDAY, 27 JANUARY 2014
Mixed weather forecast for wetteronline.de - Generic domain name protected under unfair competition law but not under name rights

 

Last week, the German Federal Supreme Court ruled on the legality of a generic "typo" domain. The court held that the use of the typo domain "wetteronlin.de" amounted to unfair competition because it detracts customers from the previously established website at wetteronline.de. The court ruled out any claims on the basis of name rights, though.

The claimant, owner of "wetteronline.de", a platform for weather forecasts, had objected to the registration of the typo domain "wetteronlin.de" and its use for advertising insurances. The claimant requested the court to enjoin the defendant from using the domain name for commercial purposes and to order the defendant to consent to the cancellation of the domain name.

While both lower instances had granted the claimant's requests in full, the Federal Supreme Court differentiated. It allowed the cease and desist claim based on unfair competition. By using the typo domain, the defendant unlawfully obstructed the claimant's business, detracting customers who actually wanted to visit the claimant's website. The claims based on name rights were rejected, though. The court found that the domain name "wetteronline" (meaning "weather online") was purely descriptive and lacked the necessary distinctiveness. Likewise, the court rejected the claims for cancellation of the domain name. It held that the domain could be used in lawful ways - such as for private purposes, or by including a suitable disclaimer referring users who were looking for wetteronline.de to that website. Hence, the registration of the name per se did not infringe the claimant's rights, like its actual use did.

This author finds the Federal Supreme Court's decision to be well balanced and reasoned. The German press statement of the German Federal Supreme Court of 22 January 2014 can be found here.

Case reference: BGH, decision of 22 January 2014, file no. I ZR 164/12

Posted by: Anthonia Ghalamkarizadeh @ 09.20
Tags: BGH, wetteronline.de, wetteronlin.de, German Federal Supreme Court, typo, domain,
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