The legal community in Germany is increasingly focusing on legal aspects of the Internet, not least aspects of protecting intellectual and industrial property. Some recent developments:
1. TRADEMARK/NAME PROTECTION IN THE INTERNET
So far, there is one recent published decision by a German court regarding the protection of names in the Internet (District Court Mannheim, decision of March 8, 1996, case No. 7-0-60/96). The plaintiff was the City of Heidelberg. In December 1995, it tried to register "Heidelberg.de" as a domain name. The defendants had already registered this domain name for themselves. The District Court Mannheim issued and upheld a preliminary injunction against the defendants ordering them to cease and desist using the Internet domain name "Heidelberg.de". The court held that the use of this domain name by another party violated the City's right to its name under s.12 BGB (Burgerliches Gesetzbuch/Federal Civil Code).
While this decision is certainly a positive signal for German companies and other legal entities who increasingly have to deal with users of domain names similar to their own company names or trademarks, numerous issues relating to the use of names and designations in the Internet remain to be resolved. As of yet, there are no published decisions dealing with the question of whether use of a certain domain name can also constitute a violation of a registered trademark. Cases are conceivable in which such a registered trademark may not afford sufficient legal protection against unauthorised use of the mark in the Internet, particular if it is not used by the infringer as a trademark, if there is no registered trademark in Germany or if it is used by the infringer for goods/services other than those for which it is registered. Depending on the circumstances of the case, if trademark law is not sufficient for proceeding against the unauthorised user, the illicit use of trademarks may constitute a violation of German unfair competition law (in particular s.1 or s.3 UWG (Gesetz gegen den unlauteren Wettbewerb/Unfair Competition Act) or German civil law on torts (in particular s.823 para.1 or s.826 BGB).
It is likely that further court disputes will lead to more German case law and to a clearer situation in the near future. Perhaps such litigation will also involve DENIC, the current administration of domain names in Germany located at the University Karlsruhe, and its practice of granting domain names.
2. COPYRIGHT PROTECTION IN THE INTERNET
Since German copyright law is applicable regarding possible copyright infringements in Germany, it will have to be taken into account for the German territory regarding any dissemination of data in the Internet. Copyright experts in Germany are currently discussing the issue of whether scanning texts for use in the Internet and offering/obtaining such texts (or other works protected by copyright) through the Internet can constitute copyright infringements. Although many details are still under dispute, current articles by copyright experts show a tendency to qualify the scanning of copyright protected texts for dissemination in the Internet as a copyright violation. There are no decisions by any higher German courts or the German Supreme Court on these issues yet. However, the increasing importance or commerce and communications through the Internet is likely to lead to some precedents fairly soon.
The content of this article is intended to provide a general guide to the subject matter. It is therefore recommended that specific professional advice is sought before any action is taken.
For further information please contact Stefan Volker, Gleiss Lutz Hootz Hirsch & Partners, Maybachstrabe 6, D-70469 Stuttgart, Germany, Tel.: +49/711/8997-0, Fax: +49/711/855096.