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Domain check: What you need to consider when registering or buying your domain

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Domain search - where are the legal pitfalls?

There is still the opinion on the Internet that when registering your own domain you should choose exactly THE domain name that best suits the project. This is true from a marketing point of view, but not without the suffix "... as long as the domain does not violate third-party rights."

Although a free domain can be registered very quickly or taken over by the previous owner with a so-called provider change request, a number of possible legal violations should be checked before a domain registration so that one does not run the risk of receiving a chargeable warning about the use of the domain.

Composition of a domain name

If you take a closer look at the subject of domain law, you have to distinguish between the domain name itself (“Second Level Domain”) and the domain ending (“TOP Level Domain”). Often the legal problems with a domain are not in the domain extension, but primarily in the domain name, so this article should focus on this area.

What mistakes should you avoid when buying or registering domains?

Basically, using your own first and last name is not a problem - but let's be honest: Only in the rarest of cases do you want to operate your Internet project under your own name as a domain, but often aim more at the choice of a more relevant domain, for Example for weblogs, from.

If you want to register or buy a domain, you should therefore check beforehand whether the desired domain contains the following components. If only one question can be answered with "YES", it is better to refrain from registering or purchasing the domain:

1. Does the domain contain brand names and company names?

The use of a brand name in a domain is often interesting in order to show the visitor at first glance which brands the website is about. In online shops in particular, a domain like "adidas-xy.de" could be used to advertise to potential customers in a much more targeted manner than with the domain name "sportschuhe-mustermann.de".

The problem at this point, however, is that any use of a third-party trademark in the domain name requires the prior approval of the rights holder in order not to run the risk of warnings. Particularly with regard to the use of brands, the object and value in dispute usually only start from EUR 50,000, so that an operator of a website can quickly find himself exposed to high cost demands from the right holder through warnings or legal proceedings.

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You should also refrain from using the company names of other companies in your own domain names without permission, as these regularly enjoy protection under naming law.

If you can get permission to use a brand or name from the rights holder or company, it is strongly recommended to have this permission confirmed in writing so that you have proof of the lawful use of the components in the domain name in case of doubt.

2. Does the domain contain celebrity names?

As with the use of company names in domain names, you should refrain from using the names of prominent people as part of your own domain. Even if celebrities appear in public to a different extent than private persons, they also have a right to a name under Section 12 of the German Civil Code (BGB).

3. Does the domain contain titles from magazines, films or software?

Of course, a domain that contains a title from a magazine or a film in its name sounds interesting in terms of potential marketing and advertising revenue. However, at this point it should always be borne in mind that the titles are generally subject to title protection. This also applies to the operation of fan sites that contain the name of a television series or film.

4. Has the domain been specifically registered as a “typo domain” of a known domain?

Also interesting at first glance, but usually no less inadmissible, is the registration of a domain that differs from a well-known domain only through built-in “typing errors”. At this point, domain owners often hope that potential visitors to a website will make a mistake and thus generate traffic for their own Internet projects. However, violations of trademark, name or title protection rights also threaten at this point.

Furthermore, care should be taken not to register city names, authorities or designations of state institutions.

Who is liable for domain rights violations?

As the previous statements have already shown, there is a whole host of dangers when registering domain names, which can result in paid warnings. But who is actually liable for violations of third-party rights by registering or taking over a domain?

In principle, the owner of a domain who is registered as such with DENIC is liable for legal violations that are committed on a domain. The prerequisite for this is that the domain owner must be responsible for the legal violations. This is particularly controversial if the domain owner does not offer any content himself, but acts, for example, as the operator of a file host.

Interferer liability

In certain constellations, one may have to discuss whether the domain owner is liable for what is known as interference liability. This is the case when the domain owner is responsible for the violations of the law by others, for example because he has culpably neglected inspection and control obligations.

However, the domain owner must also take action at the latest when he becomes aware of a legal infringement in order not to run the risk of being viewed as an interferer.

Liability of the Admin-C

For a long time it was also controversial at this point to what extent the Admin-C (i.e. the administrative contact person for a domain) is liable for legal violations on the domain. This question is particularly interesting if, for example, a .de domain is registered by foreign companies, but a German Admin-C (which is required according to DENIC guidelines) acts as trustee. The background to this is that in the event of legal violations, it is preferable to take legal action against a party based in Germany in order to avoid problems with international law and the risk of enforcement.

At this point, however, the BGH has ruled several times in the recent past that the Admin-C is only liable if there are “special circumstances increasing the risk” and the Admin-C has not previously checked domains for legal violations. However, in the opinion of the BGH, it is not sufficient that a large number of domain names have been registered by the Admin-C (judgment of December 13, 2012, Az. I ZR 150/11 and judgment of November 9, 2011, Az. I ZR 150/09) If, however, an Admin-C fails to ensure that a legal violation becomes known, he is usually liable as a disruptor.

What should you watch out for when buying and registering domains?

Regardless of whether a domain is acquired as part of a purchase and taken over by a provider change application, domains abandoned by the previous owner (so-called "expired") domains are registered for their own purposes or completely re-registered - if a few tips are given in advance of a domain registration are observed, then this at least a little reduces the risk of later legal disputes with regard to the domain.

• No "blind registrations" of domains

Especially with the new registration of "expired domains", which are already well positioned in the search engines due to the work of the previous owner, the time until the successful registration is of enormous importance, because often several people are interested in the registration of a domain when it is first once found their way into portals for expired domains. Nevertheless, we can only advise against registering domains "blind" without any legal checks - otherwise there is a risk of warnings that can quickly turn even the most interesting domain into a cost trap.

• Enter domain names in search engines

If you want to avoid an extensive legal check by a lawyer (which, depending on the purpose of the domain and your own expertise in domain law, is strongly recommended for larger and commercial projects), it is advisable to enter the domain name without. tld (TOP level domain extension) in search engines - this usually gives you a very good overview of whether a domain tends to be more generally descriptive or whether it could be protected by name, trademark or title protection rights. In the latter case, you should find numerous entries about companies or films that can be ordered on the Internet.

• Perform trademark research for the domain name

In addition to checking the search engines, a trademark search should be carried out. A simple one Identity research (= Checking whether a term is protected as a trademark in exactly the form entered) can be carried out at the German Patent and Trademark Office. For some time now, the DPMA has also been offering searches for EU trademarks and international trademarks.

https://register.dpma.de/DPMAregister/marke/einsteiger

A Similarity research However, this is not possible through the DPMA; you should hire a specialized lawyer here. The risk that you violate the rights of similar sounding word marks or similar-looking picture marks is of course much higher than the violation of identical marks.

• Make the website legally compliant

If you have decided to register a domain for your own project after thorough research and, if necessary, legal advice has been carried out, it is important that you also design the website yourself.

In particular in the area of ​​the imprint or the requirement to separate editorial and advertising, website operators repeatedly violate the law, which can result in cost-intensive and nerve-wracking warnings from competitors or competition associations.

If you want to run a shop or paid services under your domain, you will not be able to avoid a shop review and the creation of terms and conditions by a lawyer.

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