Domain names cannot be blocked without registration

Germany

The German Federal Supreme Court has ruled that where a natural person does not wish to register his or her personal name as a domain name, he or she cannot block its future registration because third parties may also have a right to register that name as an internet address (BGH I ZR 82/01).

The case stemmed from the registration of the domain name 'kurt-biedendorf.de'. Kurt Biedendorf, the former regional premier of Saxony, Germany, took issue with the registration and filed a lawsuit against DENIC - the German registrar for '.de' domain names. Based on rights in his personal name, Biedendorf requested cancellation of the registration and also demanded that DENIC permanently exclude the name from registration to prevent other parties from infringing his rights. Biedendorf made it clear that he did not want to register the domain name in his own name.

The first instance court granted Biedendorf's claim for cancellation of the disputed registration pursuant to Section 12 of the German Civil Code. However, it refused to issue an order requiring DENIC to block any future registration. Biedendorf appealed.

The German Federal Supreme Court dismissed the appeal. It held that although future registrations of 'kurt-biedendorf.de' also bore the risk of future infringement (if the person filing for registration had no rights in the name), DENIC needed to be able to administer registrations in a quick and effective way. DENIC could not therefore be required to (i) check incoming registrations for possible infringements, or (ii) block certain names from registration. Further, a total exclusion of registration for the domain name 'kurt-biedendorf.de' was not possible as it would prevent third parties with legitimate interests in the name from registering it as a domain name. The people most likely to be affected were natural persons sharing the same name as Biedendorf.

The judgment confirms earlier decisions, which have generally not held DENIC liable for infringing registrations, unless the infringement was obvious from the application.

Julia Meuser, Freshfields Bruckhaus Deringer, Hamburg

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