The judgement of the Celle Appeal Court of 29th March 2001 (13 U 309/00)
The mere exploitation of the domain “anwalt-hannover.de” (“attorney-hanover.de”) by an attorney-at-law constitutes misleading advertising under § 3 of the Unfair Competition Act.
Findings of fact:
The parties to the dispute are attorneys-at-law admitted before a court in (…). The plaintiff makes a claim on the defendants to cease and desist from commercially using the domain “www.anwalt-hannover.de” (“www.attorney-hanover.de”) in the internet without any other distinctive features. The Regional Court issued the interim injunction applied for. The defendants have lodged an appeal against this ruling.
The appeal is unfounded.
The plaintiff is legally entitled to the asserted right to forbearance.
According to § 43b of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung – BRAO) and § 6 (1) of the Occupational Regulations for the Bar (Berufsordnung der Rechtsanwälte – BORA), attorneys are allowed to inform about their professional activity objectively as to form and contents. In principle, an attorney can also present his offer on an internet home page. However, like any other advertising measure, an advertisement in the internet is inadmissible, if it violates the prohibition to mislead under § 3 of the Unfair Competition Act (Feurich/Braun, BRAO, 5. Ed., § 43 b Rdnr. 38; cf. BVerfG NJW 2000, 3195), which is the case here.
Persons who want to find the “right” lawyer by means of the internet (especially using the so called search engines), usually obtain an overview listing the respective documents including domain names. If they happen to come across the domain “www.anwalt-hannover.de”, they are likely to be mislead, since a considerable group (from the legal point of view) of average informed and reasonable internet users expects to find under such a domain designation a home page of a central service providing offers of a number of law offices in this area. Such an interpretation can be supported by the fact that – according to the statement of claim which has been substantiated by prima facie evidence – similar domain addresses – "www.hannover-rechtsanwalt.de", "www.rechtsanwaelte-hannover.de", "www.anwalt.de" oder "www.hannovers-rechtsanwaelte.de" – already provide or are being constructed to provide a centrally prepared summary of information on attorneys-at-law.
This deception is likely to influence potential clients’ choices of an attorney-at-law in a manner pertinent to competition law. As far as that is concerned, it is sufficient that due to the misleading name “www.anwalt-hannover.de” potential clients are prompted to use the home page of the defendant, which they would probably have not found or noticed otherwise (baiting by means of misleading information: cf. Baumbach/Hefermehl, 21. Ed., § 3 UWG Rdnr. 89 a).
The necessity for urgent proceedings required for issuing interim injunction is given here.
The urgency of the matter is presumed under § 25 of the Unfair Competition Act. The defendants did not rebut the urgency presumption. There is no indication that the plaintiff had been aware of the internet name in question some time before moving for an interim injunction. Therefore, the defendants must substantiate by prima facie evidence.
The costs order is based on § 97 (1) of the Code of Civil Procedure.