City of Duisburg loses fight for domain name

Germany

In a dispute involving the domain name 'duisburg-info.de' (Oberlandesgericht Düsseldorf, 20 U 76/01), the Düsseldorf Court of Appeal has ruled that public entities - in this case the City of Duisburg - may not prevent the legitimate use of their names as domain names.

The City of Duisburg, which already owns 'duisburg.de' and 'duisburg-information.de', brought legal action against a well-known map manufacturer for registering and using the domain name 'duisburg-info.de'. The registrant's website offers information on Duisburg and prominently displays a notice that it is not the city's official website.

The court of first instance ruled that the city does not have the right to prevent the registrant from using 'duisburg-info.de', since such use does not infringe the city's name rights. The appellate court affirmed.

Under German law, the rights of the holder of a name are infringed when another party uses the name in a manner likely to cause confusion. In the case of domain names, this may occur when a user mistakenly believes that the website he/she is visiting is in some way connected to the holder of the name appearing in the domain name.

In Duisburg, the appellate court stated that the risk of confusion is minimized if the user actually visits the website and considers its contents. As the registrant's website informs users of its unofficial character, confusion is unlikely to occur. In addition, the public is aware that not every domain name using the name of a city is actually operated by that city. It is to be assumed that the public understands that third parties with some sort of relationship to the city may make use of the city's name in domain names.

This ruling is in line with previous regional court decisions applying the first-come, first-served principle in favour of the first person to register a name. For example, in a dispute between an individual and the city district of Sandwig involving the domain name 'sandwig.de', the Flensburg Regional Court held in favour of the individual, even though that person is not called Sandwig. Also, the Higher Regional Court of Koblenz held that the principle applied in a dispute over the registration of 'vallendar.de' between owners of identical names. The court said that where there is a dispute between owners of identical names, unless one of them enjoys outstanding notoriety, the first-come, first-served principle applies.

Volker Schmitz, Boehmert & Boehmert, Munich

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