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IP rights on the Internet.
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.de domains

German cc (.de) domains must be applied for via a German internet service provider (ISP) or directly with the German Network Information Center [DENIC], which is a private association duly organized under German legislation.
 

Who can apply?
Any person or company worldwide can apply for an unlimited number of domains and there are no particular formalities needed. The domains can comprise of letters or numbers and must have at least three characters which comprise of at least two letters. The domains are registered according to the first to file-first to receive principle, and it is the applicant's duty to check his domain for conflicts with eventual prior trademark, company name and copy rights. As far as can be seen, there are no plans for the time being to introduce major changes to the national system.
 

TM - Domain relationship
Domain names may also obtain trademark protection if they fulfill the general requirements. Protection may be obtained without registration if the domain name is recognized by the interested circles as being the distinctive sign for the respective products or services.
The fact that domain names have to be registered with the domain name registry before they can be used on the Internet is without legal significance in respect to protection as a trade mark.
 

Unfair Competition
In view of the fact that there are completely different registration procedures for domain names and trademarks with no state controlled examination of domain registration, Sec. 8 (2) of the German Trademark Act provides absolute grounds for refusal of registration, as a trademark cannot be applied to domain names.
However, the use of domain names that are of such a nature as to deceive the public, or are contrary to accepted principles of morality, can be prohibited on the basis of Sec 1 and 3 of the Act Against Unfair Competition.


 

Bad Faith?
Prior use as a domain name may mean that subsequent registration of the name as a trademark by another person is regarded as having been made in bad faith, which may result in cancellation of the registration pursuant to Sec. 50 (1) ( 4) German Trademark Act. The assumption of bad faith is determined on a case-by-case basis.

The following aspects may be of importance for the assessment:

  • whether the domain name had been used for the same or
    similar goods or services;
  • whether extensive use had been made of the domain name,
  • whether the applicant of the trade mark has a proper right in the name, or
  • whether the name is a coined word or is very similar to a term which is usual or descriptive in the given context.

 

Legally Valid Use?
It depends on the perception of the public whether the use of a mark as a domain name will be considered sufficient with respect to the use requirement. In particular, use as a domain name may be sufficient if the mark is registered for specific Internet-related services. In other cases, it may be doubtful whether the use requirement will be deemed as fulfilled by the use of the mark as a domain name only.
 

Recent Court Cases
We estimate that there are over 1000 German court decisions which are available in German language only. You may find, for example, the decisions of "epson.de", "cyberspace.de", "Webspace", and many more.
 

Official Documents
In Germany the use of domains, signs, marks and IP-rights on the internet is understood as a regular use in the market which may have the above mentioned highly important and special aspects. There do not exist any Official Documents besides the German Trademark Act, the German Design Act, the German Copyright Act and the German Law on Unlawful Competition. There are some English introductory documents available from [DENIC]. You can also find the Rules for Uniform Domain Name Dispute Resolution Policy of the Internet Consortium for Assigned Names and Numbers, at [ICANN] or [WIPO].

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