Fri, Jan. 16, 2004

Match Drawn or: the Forbidden Domain

SWM - Washington.   The appellate court of German's federal state Niedersachsen ruled that nobody may use the domain www.schulenberg.de. The domain is registered and was used by a Mr. Schulenberg. A German town of the same name sued him, claiming stronger rights in the name. The plaintiff asked Mr. Schulenberg to drop the domain so that the town could register it and in court also prayed for a cease and desist order on his use of the domain.

Under the civil code, the bearer of a name, such as a family name or a city name, has some rights to protect it against unauthorized use. This provision in the code had minor relevance until the internet started its triumphal procession throughout Germany. Since every name can be registered for a domain only once an enormous number of law suits arose, based on the right to bear a name. The German Supreme Court for Civil Matters ruled that a name of outstanding prominence may confer on its owner a strong, and legally superior, right to claim it as a domain name, despite the fact that the court recognized the domain name principle of first come first served.

While the judges found the town of Schulenberg to be nice and offer some appealing touristic facilities, they did not deem it prominent enough to merit Schulenberg's domain. The court found also that an even more prominent bearer of the name may possess a stronger claim to it. Therefore, they recognized no absolut right in it to be held by the town. But the town's legal position was still strong enough to force Mr. Schulenberg not to use his domain "in public", because the town is older than Mr. Schulenberg and better known outside the internet. In addition, Mr. Schulenberg had had diminished his legal position by allowing other bearers of the name Schulenberg to place a hyperlink to their sites on his.

The appellate decision upheld the ruling of a German district court, but stands in contrast to judgments by other German courts and has been criticized by German lawyers for not being "practically useful".

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