According to The Register, citing Heise Online, the Bundesgerichtshof (the German Supreme Court) has ruled that merely registering generic terms as domain names does not constitute an unethical intent to cause damage. The court has ruled that registering domain names is typically based on a first-come, first-served principle. The resulting advantage for the person who registers first cannot thus be seen as unethical, the Court has ruled.
The decision comes after several regional courts ruled in favour of Germany's Axel Springer, the country's second-largest magazine publisher, which sued a businessman from Kaarst for registering more than 4000 generic domain names, including www.welt-online.de. Die Welt is one of the newspapers Axel Springer owns; however the name 'welt online' (world online) can also be used in a generic way. Although the businessman was forced to hand over the domain name www.welt-online.de to Axel Springer, he managed to hold onto www.weltonline.de, for which Alex Springer sued him again. Now the court has come to his rescue. This ruling doesn't necesarily mean that domain name grabbers have free play. The Markengesetz (the German Trade Mark Act), the Gesetz gegen unlauteren Wettbewerb (Unfair Competition Act) and sections of the Buergerliches Gesetzbuch (the Civil Code) may still prevent domain grabbing which has particularly deleterious repercussions.
The IPKat believes this to be right in principle: it's not what you register, but what you do with what you've registered, that is likely to be a problem: trade mark and unfair competition law already exist to protect against such evils. But Merpel asks: "But isn't it the Germans who are so keen on Freihaltebedürfnis - the need to keep designations free for common use - when it comes to trade mark law? Is this need to keep free a matter of no consequence here?"
Some generic terms that have been grabbed by .com registrants: potatoes, spinach, beef, whisky, hangovers, halitosis and herpes
GENERIC DOMAINS MAY BE SAFELY GRABBED, RULES GERMAN COURT
![GENERIC DOMAINS MAY BE SAFELY GRABBED, RULES GERMAN COURT]()
Reviewed by Jeremy
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Tuesday, December 07, 2004
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Merpel's right in principle, but she should remember that in the EU at least, the need to keep free only goes so far. Once a formerly generic or descriptive term has acquired distinctiveness it can be made the subject of a single undertaking's property rights.
ReplyDeleteFine, but generics that are TRULY generic and lack any secondary meaning are genuinely up for grabs and there's no legal doctrine that appears to counter the rush to privatise public and freely available generic terms.
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