German Federal Court of Justice, decision dated January 22, 2014, case no. I ZR 164/12
In a recent decision the Federal Court of Justice has dealt for the first time with the question whether the use of so called typing-error-domains constitutes a violation of the right to a name or is to be qualified as a breach of competition law. The plaintiff operated its service under the domain "wetteronline.de". The defendant registered "wetteronlin.de" to redirect users to a different website where he presented advertisements.
No violation of the right to a name – The Federal Court of Justice denied a claim based on a violation of the right to a name. The part of the name "wetteronline" was found not to have any inherent distinctiveness. Considering the corporate purpose of weather forecast, the court stated the appellation to be solely descriptive.
Breach of competition law – The court acknowledged, however, a breach of competition law. The court ruled that operating the typing-error-domain is an unfair interference, as the sole purpose of the domain "wetteronlin.de" was to redirect users who wanted to visit "wetteronline.de" but made a typing mistake. By trying to enter the address the users were already attributed to the customer base of the operator of the original correctly spelled domain. The operator of the typing-error-domain then acted inappropriately upon these users by exploiting their typing mistake and thus violated the claimant's legitimate interest not to upset and finally lose those users who did not notice their mistake.
Limitation of the ban – However, the Federal Court criticized the Appeal Court's general ban, independently of an actual use of the typing-error-domain for a website or of its content. According to the Federal Court an interference is still fair if for example the user is immediately and unmistakably informed that he did not visit the page "wetteronline.de" and that a typing error is likely to have occurred when entering the domain's name.
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