The Freename Forum

In the dispute over the domain adler.eu, Mr Adler, who brought the complaint before the Czech Arbitration Court (CAC), lost out as the domain is being used properly by its owner, among others. The CAC confirmed the established case law on such matters.

The complainant has had the surname Adler since birth. He considers his rights under Section 12 of the German Civil Code (BGB) (right to a name) to have been infringed and lodged a complaint with the CAC. There he argued, among other things, that the opponent had no rights to the sign ‘Adler’ and that he was not known by this name. The complainant had also not granted him any rights to use the name. The use of the domain adler.eu for content on the subject of animal species and nature conservation was only a pretence; in fact, the aim was to sell the domain for EUR 6,500 via Sedo.de, which was also indicated on the website under adler.eu. The complainant requested the transfer of the domain adler.eu to himself. The opponent argues, among other things, that he has been an IT service provider, active in domain marketing and a registrar for .eu domains since 2005. He registered the domain adler.eu in 2011 and set up a website with content on nature and animal protection under it. The sales offer was only of secondary importance; he was involved in nature and animal protection and regularly made donations. He would also regularly provide funds from domain sales as a donation for nature and animal protection; this was also planned for the domain adler.eu, which he would sell for an appropriate amount. At the time the domain was registered, the complainant was not known to him. He requested that the complaint be dismissed.

The Austrian lawyer Peter Burgstaller was appointed as decision-maker and dismissed the complaint (CAC-ADREU-008673). He confirmed that rights from the family name exist in favour of the complainant according to § 12 BGB and that the domain adler.eu is identical to the name of the complainant. However, the domain name ‘adler’ designates a bird species as a general term and is also generally used in various other contexts. The opponent uses the domain adler.eu in the broadest sense of the meaning of the original word ‘eagle’ for content about nature and animals and their protection. Rights from the right to a name could only be successfully asserted if interests of the name holder worthy of protection were infringed, for example if there was a risk of confusion. This is not the case here. Therefore, the opponent would have legitimate interests in the domain name and there would be no interests of the complainant worthy of protection. A bad faith registration of the domain by the opponent in 2011 is ruled out because even the complainant does not assume that the opponent knew of its existence at the time and would have registered the domain for this reason. Burgstaller was also unable to establish bad faith in the use, as domain trading as such does not constitute use in bad faith. Bad faith would also not result from additional special circumstances, such as the domain not being used or being used in a way that refers to the complainant or suggests an economic link with the complainant and thus infringes the legitimate interests of the complainant. This meant that not all of the requirements of the Dispute Settlement Rules for .eu domains were met and Burgstaller dismissed the complaint.

There are numerous decisions dealing with the issue of domains and the infringement of naming rights. The results are adapted to the circumstances of the individual case. The UDRP only protects names to the extent that they have become trade marks themselves (see estherheesch.com, Forum Claim Number: FA13060015 05507). The Dispute Settlement Rules for .eu domains differ from this, as they also explicitly protect the right to a name. In addition, this regulation also differs from the UDRP with regard to the question of bad faith, as this does not have to be present upon registration and use, but only bad faith is required upon registration or use. There are also numerous decisions by civil courts on name domains such as krupp.de (OLG Hamm, judgement of 13.01.98, Ref.: 4 U 135/97), sonntag.de (OLG Munich, judgement of 24.02.2011, Ref.: 24 U 649/10), winzer.de (AG Deggendorf, judgement of 14. 12.2000, Ref.: 1 O 480/00) and naeher.de (LG Berlin, judgement of 21.02.2008, Ref.: 52 O 111/07), which show which criteria are used in detail to assess whether a name holder is entitled to a domain or not.

The UDRP decision on the domain adler.eu can be found at:
https://eu.adr.eu/decisions/detail?id=6 ... fa9f0452f3