Identical foreign domain name does not infringe German mark

Germany

The Hamburg Appeal Court has upheld a lower court's decision that declined to transfer the domain name 'hotel-maritime.dk' to the German complainant on the basis that the Danish website does not offer goods or services in Germany and, therefore, does not infringe the German MARITIME mark (OLG Hamburg, 3 U312/01).

The owner of the MARITIME trademark in Germany, used in relation to a hotel chain, sued the Danish registrant of 'hotel-maritime.dk', used in relation to the registrant's hotels in Copenhagen. The website is published in several languages, including German.

The Hamburg Court of First Instance found for the registrant, stating that the owner of a German trademark cannot prevent the Danish registrant of a '.dk' domain name from attracting German customers (LG Hamburg, GRUR Int 2002, 163).

On appeal, the Hamburg Appeal Court affirmed this decision. It found that the German trademark had not been infringed since the activities of the Danish domain name registrant do not have sufficient contact with Germany, and the complainant's trademark protection is limited to Germany.

The court also reasoned that regardless of whether the Danish website advertises in several languages, the domain name registrant's services are limited to Denmark. Thus, the German trademark had not been damaged.

Florian Schwab, Boehmert & Boehmert, Munich

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