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The judgement of the German Supreme Court of 17th May 2001 (File Number I ZR 251/99)

According to the decision of the German Supreme Court, DENIC is fundamentally not obligated to examine upon registration whether a third party has rights to the name to be registered. Such obligation applies only to obviously unlawful registrations.

The plaintiff in this case, the Frankfurt Messe AG, is a firm that organizes trade fairs in Frankfurt am Main, among others Ambiente, a large annual international consumer goods show (particularly focusing on interior decoration, furnishings and lighting design). The plaintiff owns the trade mark “Messe Frankfurt Ambiente”, which has been registered for arranging and conducting fair trades and exhibitions.

The defendant is Denic, a large German domain provider that administers all ".de" domains. Denic had registered a domain under the name of "". The Frankfurt Messe AG approached the company that had registered "" with Denic in an effort to seek to have the registration cancelled or abandoned. The company agreed to refrain from further use of the domain name but rejected the request to have the registration cancelled. The Frankfurt Messe AG then brought suit against Denic demanding that Denic cancel the original registration and register the domain name for the plaintiff.

The Regional Court of Frankfurt am Main had sided with the plaintiff. The Regional Appeal Court of Frankfurt then rejected the reasoning of the Regional Court and overruled its judgement.

The German Supreme Court affirmed the decision of the Regional Appeal Court. The Court pointed out that Denic – being responsible for the task of registering and administering some millions of domain names – cannot be expected to examine upon registration whether any third parties have rights to the name to be registered. In cases in which the opposing rights of third parties are obvious, Denic could refer the third party to the rightful holder of the domain in question, with whom it should be clarified which party possesses better rights to the domain name, by way of court judgement if necessary. The party possessing such rights would then have to present a judgement thereof to Denic.

Further, the German Supreme Court held that the defendant was not obliged to cancel a domain name registration when asked to do so by a third party claiming "priority" rights to the registered name. The German Supreme Court made it clear that a domain provider only has a duty to cancel a registration when it is openly false and detrimental to the rights of others.

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© German Lawyer Dipl.-Ing. Michael Horak LL.M  2002-2018

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