German American Law Journal :: American Edition

Beware the German Domain Rule

CK - Washington. In the dim ages of the Internet, trademark law and domain law were two separate branches of the law. Trademark law addressed priorities and the domestic, territorial nexus of vendor and goods or services. Domain law resolved issues of a global first come, first served addressing system for web and other Internet techniques. Trademark lawyers didn't understand the domain name system and began to apply trademark law to it, then prevailed on legislators to outlaw the first come, first served foundation of domain law.

Germany and the United States went parallel paths in that evolution. Now, a German court vigorously pedales ahead of the peleton by applying German trademark law extraterritorially. It tells a Gulf state corporation to use .ae domains, not .com domains. Its .com domain would indicate commercial activity. Its commercial activity is noticeable in Germany. In Germany, there is a trademark owner with a mark akin to the domain name. The .com domain violates the trademark in Germany, a .ae domain would not.

The Düsseldorf Court of Appeals sticks its neck pretty far out. Germany tends to complain of American adventures into the extraterritorial application of laws. In its ruling 1-20 U 93/07 of April 22, 2008, the German court does not do only that but gratuitously volunteers a redefinition of domain extensions. Certainly, .com has always been understood to cover any use that is not .mil, .gov, .edu and to some extent .net and .org, although the latter two went through evolutions where they now allow for any use.

Generally, .com has not been understood as principally representing global commercial as the Düsseldorf court makes it out to be. Global commercial activity was one of the activities the .com extension could cover, but its principal characteristic was that it was not .edu, .mil and .gov.

As a result, any .com use can now be challenged under German trademark law in a German court, especially where the web site is maintained in a subsidiary German language version. The court found such a version indicative of targeting customers in Germany, despite the fact that German is used not only in Germany. To be on the safe side, web designers may want to use a Liechtenstein flag to point to a German-language presentation on a .com web site.
© German American Law Journal :: Washington USA

LLM in Restructuring

CK - Washington. Heidelberg University Law School announced a new type of LLM program for corporate restructuring. The program targets both domestic and foreign students and covers, among other topics, international insolvency and associated tax and corporate issues.
© German American Law Journal :: Washington USA

Confession Under Torture

MJW - Washington. On June 30, 2008, a decision in one of the most controversial cases in recent German criminal history was delivered. The judgment came from the European Court of Human Rights, ECHR, in Strasbourg in the case of Gäfgen v. Germany, application no. 22978/05.

In late 2002, Gäfgen kidnapped and suffocated a boy. Upon the defendant's arrest, the police believed the boy still to be alive. When he first would not disclose the boy's whereabouts, the local deputy chief of police instructed the interrogating officer to tell Gäfgen he would suffer considerable pain unless he disclosed the boy's location. Gäfgen then confessed killing the boy and hiding the corpse.

The Frankfurt Regional Court, Landgericht, convicted him of murder and other felonies and sentenced him to life. After failed appeals to German courts contesting the use of evidence obtained through torture, Gäfgen took the case to the ECHR.

The decision emphasizes the importance of Article 3 of the European Convention of Human Rights. Art. 3 prohibits torture and inhuman or degrading treatment or punishment. The EHCR holds that even in the event of a public emergency threatening the life of a nation, no exceptions or derogations are permissible. In light of the threat that caused Gäfgen considerable mental suffering, the EHCR finds the police treatment inhuman under Article 3. However, the criminal court had not violated Gäfgen's right to a fair trial protected in Article 6 para. 1 of the Convention. The use of evidence directly or indirectly obtained through Gäfgen's confession which in turn was extracted by means contrary to Article 3 would have most likely rendered the trial unfair. As it happened, the conviction relied on the confession Gäfgen made in court.
© German American Law Journal :: Washington USA

Compliance Surcharge

CK - Washington. Compliance after 9-11 has become cumbersome and expensive. In the early 1990s, some thought export controls would all but disappear. Instead, export controls grew, OFAC controls became far-reaching and 9-11 pushed restrictions and compliance obligations into foreign legal systems. The Obiter Dictum blog in Germany notes strange effects on ordinary business. Freightforwarders are now adding a compliance charge to their invoices. Massive changes in the technical infrastructure and updates of software to include embargo list cause one such company in Germany to levy a compliance surcharge of 2.65 Euros on each transaction.
© German American Law Journal :: Washington USA

IP Address for Private Suitors

CK - Washington. The release of IP addresses by ISPs to private parties may be technically useless but in Germany, it can violate constitutional protections afforded Internet users. A May 21, 2008 order from the Frankenthal district court disallows the use of an IP address as evidence in a copyright dispute. The private party had obtained contact data of the user to whom an ISP supposedly had assigned the address, by way of filing a criminal complaint and subsequently reviewing the results of an investigation conducted by the D.A.

Lacking a discovery process in German law, the criminal avenue serves as the customary path for music, software and movie companies to the perceived identity of violators of copyrighted material they market. While there is ample technical evidence in the United States that IP addresses are unreliable as evidence in litigation, marketers of copyrighted assets in Germany rely on IP addresses for their criminal and civil prosecutions.

In February 2008, the Constitutional Supreme Court had invented a new constitutional right to informational self-determination. In March, it limited to serious crimes the release of contact information based on collected Internet traffic data, case number 1 BvR 256/08. The Frankenthal court applied the guidelines to the copyright matter at hand which involved allegations of copyright violations through the use of Internet services.

Many commenters question the applicability of the Supreme Court guidelines to the instant case, case number 6 O 156/08, and believe the order will not resonate in similar proceedings. Much of the discussion turns on the data protection statute and the distinctions for preserving and using data such as IP addresses.

In turn, such data may be classified in different categories and for various purposes, none of which have been reconciled by courts and commenters into clear rules, while the federal legislators keep fiddling with the statutes governing the Internet. For example, the attorney generals of the states on June 12, 2008 called for direct access of copyright owners to ISP and customer data, Heise reports.
© German American Law Journal :: Washington USA