On the anticompetitive nature of generic umlaut domains

The registration of a generic term as an umlaut domain is not anticompetitive merely because a competitor already uses the same generic term as a domain.

In the present proceedings, the parties dispute whether the registration of the domain schlüsselbänder.de by the defendant is anticompetitive in relation to the plaintiff, because the latter had already been using the generic domain schluesselbaender.de for some time at the time of registration in order, like the defendant, to distribute key rings via this domain. The plaintiff demands that the defendant cease further use of the domain.

The court's decision

In the view of the Higher Regional Court (OLG) Cologne (judgment of 02.09.2005 – 6 U 39/05), the aforementioned conduct does not constitute anticompetitive hindrance of the plaintiff. The precondition for this is the existence of an impairment of the competitor's competitive opportunities. However, such impairment is in principle an inherent feature of any competition, which is why further unfair characteristics must be present in order to make the registration of a generic umlaut domain anticompetitive. This is only the case if the specific purpose is pursued of preventing the competitor from conducting business and thereby forcing it out of the market, or impairing its ability to assert its performance appropriately in the market through its own efforts.

These prerequisites for impermissible hindrance would not be present in the mere registration of a generic term already existing as a domain. This applies in the present case even if the registration was made in order to prevent the competitor from using it, since the competitor would have sufficient alternatives (e.g. the domains "schlüsselbaender.de" or "schluesselbänder.de"). The plaintiff is therefore not vitally dependent on the domain "schlüsselbänder.de". This assessment is further supported by the fact that the defendant itself has a legitimate interest in the domain, since it itself sells key rings.

The action was therefore dismissed on appeal, just as it had been at first instance by the Regional Court (LG) Cologne, on the basis of these considerations.

Conclusion

In light of the case law on generic domains, the decision can be regarded as consistent and ultimately correct. For if entitlement to generic domains is in principle assessed according to the priority principle, then the same must apply to the corresponding generic umlaut domains. It must be irrelevant that the same generic term is already being used by another undertaking, since this circumstance cannot, for legal reasons, establish any exclusive right to that particular term, which is generally not distinctive.