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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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