Sun, Dec. 05, 2004

Domain Contact Liable

CK - Washington.   Irrational as it may appear, German courts are beginning to hold administrative contacts for domain names civilly liable for omissions of legal requirements and violative acts. The HeymsBahr blog reports of an August 24, 2004 Local Court Bonn case, docket 4C252/04, in which an attorney who as a trustee for an American domain registrant served as its administrative contact with DeNIC, the country TLD registrar for Germany, and was found liable for anti-competitive content on the web site.

The HeymsBar blog reports also of earlier German case law that laid the foundation for the Bonn decision. In March 2003, a Frankfurt court had held an administrative contact responsible for the domain owner's failure to comply with the Impressum requirement. This odious rule runs counter to general German principles which strongly protect privacy. By contrast, the Impressum rule carves out an exception and demands on commercial web sites the disclosure of owners' private information. The Frankfurt holding expands an exception to the general principle, embodied in statutes, that ISPs and similar intermediaries are not liable for the acts of their customers, except in very narrow circumstances.

In the Bonn case, the court created a deemed knowledge standard for the administrative contact. The trustee would have imputed knowlege of the content at the offensive web site and should have taken steps against the violation of competition law, even if the trustee learned of the alleged violation only through a cease-and-desist letter from the plaintiff. HeymsBahr notes that this decision, which imposes contributory liability on the domain contact, flies in the face of the majority views in Germany on the responsibility of administrative domain contacts.



Similar Business Name

CK - Washington.   The similarity of business names as an issue of trademark law, competition law and the law of names proper arises in a list discussion. In addition to standard resources such as Palandt on section 12 of the Civil Code, the following introductory material is being recommended: The Gewerblicher Rechtsschutz (I) script, and Markengesetz--Onlinepraxiskurzkommentar, both in German. Basic facts: Same city, same business name, priority with unregistered business, business incorporated as GmbH claims better rights although established later. The Anwalt list's hunch is that priority rules. An internet resource on section 12 case law is dejure.org.


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