A Heart for Typo Domains

Everyone knows them, no one likes them: typo domains, where those who make a mistake entering the desired address end up. Such is the case when one wants to go to wetteronline.de but forgets the "e" at the end (wetteronlin.de). One then landed on a page which in turn redirected one to an insurance offer. The Federal Court of Justice (BGH) has now decided by judgment of 22.01.2014 (I ZR 164/12 – wetteronline.de) that typo domains are at any rate not unlawful per se.

In the struggle for traffic, every means is right, particularly the comparatively cost-effective exploitation of spelling errors in the entry of domains. Accordingly, typo domains have always been set up in the vicinity of well-known sites in order to redirect the users who would otherwise end up in oblivion to other sites and to present them with more or less useful offers. The focus is primarily on advertising of all kinds, ultimately on the generation of income and thus on commercial activity.

The operator of wetteronline.de found and (finds) the typo domain wetteronlin.de a thorn in its side, which is why claims for injunction and deletion of the domain were asserted against the person responsible.

The Court's Decision

The lower courts granted this request and accordingly condemned the operator of wetteronlin.de. The Federal Court of Justice (BGH), by contrast, takes a far more differentiated view of the situation.

In the court's view, there is first of all no infringement of the right to a name in "Wetteronline" because it is a straightforward descriptive term for weather information made available online. The sign therefore lacks any distinctive power in terms of identification or naming.

Insofar as the claims were otherwise based on unfair competition law hindrance of the business activities of wetteronline.de, the court affirms such hindrance if the interception page does not unmistakably make clear that the user is not on the page he desired. In that case, there is an impairment of business activities which constitutes a unlawful hindrance.

Rejected, by contrast, was the claim for deletion of the domain, which already follows from the court's reasoning on hindrance. For if there is a lawful form of use, a claim for deletion of a domain is never given.

Conclusion

The judgment is absolutely logical, is in line with current domain case law and therefore fortunately corrects the undifferentiated and simply wrong decisions of the lower courts.