Frankfurt am Main District Court
Verdict
In the legal dispute between
X
v.
Denic eG, represented by the board of directors Sabine Dolderer, Marcus Schäfer, Garsten Schiefner, Dr. Jörg Schweiger, Kaiserstr. 75-77, 60329 Frankfurt am Main,
the 6th Civil Chamber of the Frankfurt am Main District Court, represented by
Presiding Judge at the District Court Rau
Judge at the District Court Wehn-Säläzer,
Judge at the District Court Kirschbaum
on the basis of the oral proceedings of November 19, 2008, ruled:
The action is dismissed.
The plaintiff shall bear the costs of the legal dispute.
The judgment is provisionally enforceable against security in the amount of 110% of the amount to be enforced.
The amount in dispute is set at EUR 50,000.
Facts of the case:
The plaintiff is claiming damages from the defendant under competition law for registering a second-level domain.
The plaintiff is the publisher of the "Z Newspaper". The defendant is the sole registry for ".de" domains.
On June 18, 2008, the plaintiff instructed its internet provider, which is a member of the defendant, to register the second-level domain "z.de", which had not yet been registered for anyone. The defendant informed the provider that it would not register the domain "z.de". The plaintiff's authorized representative tried unsuccessfully to achieve registration of the domain in question. A written application by the plaintiff dated June 20, 2008 to register the domain z.de in its name and to carry out the connection was also unsuccessful.
The abbreviation "z" corresponds to the license plate code for the vehicle registration district of the administrative district "Z". Currently, thirteen three-digit second-level domains under the top-level domain ".de" are registered that correspond or formerly corresponded to vehicle registration districts: These are the domains asz.de, eic.de, ids.de, mek.de, mkk.de, msh.de, mst.de, mtl.de, nol.de, shk.de, slk.de, sok.de, wak.de.
The plaintiff claims that it is known regionally and nationally under the abbreviation "Z", which it has achieved through years of its own use of the abbreviation "Z".
She is of the opinion that the defendant - which holds a dominant position in the market for the allocation of second-level domains with the identifier ".de" - is treating her unequally without objective grounds, since the defendant enables competitors of the plaintiff, such as the Frankfurter Allgemeine Zeitung or the Tageszeitung, to appear under the domains "faz.de" and "taz.de".
It believes that there is no objective reason for the similarity of the letter "Z" to a motor vehicle registration district. Even if the defendant does not assign (previously three-digit) second-level domains with reference to regionalization plans with regard to the vehicle registration districts at the third-level domain level, these regionalization plans can no longer be implemented. The technical difficulties of registering one- or two-character domain names, as sought by the defendant, stand in the way of this, as do the technical difficulties of registering one- or two-character domain names – a total of over 140 potential domains – as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical difficulties of registering one- or two-character domain names, as do the technical Furthermore, it denies not knowing that the defendant's regionalization plans will still be implemented. At the very least, the defendant should be referred to the milder means of temporary registration.
The plaintiff requests
order the defendant to register the second-level domain name "z" under the top-level domain ".de" in favor of the plaintiff;
in the alternative,
order the defendant to register the second-level domain name "z" under the top-level domain ".de" in favor of the plaintiff, as long as a top-level domain with the letter sequence "z" is not introduced;
in the alternative,
order the defendant to register the second-level domain name "z" under the top-level domain ".de" in favor of the plaintiff, as long as the defendant does not offer the general public the registration of third-level domains with at least 350 (three hundred and fifty) second-level domains corresponding to the official vehicle license plate abbreviations under the top-level domain "de" and at that time the letter sequence "z" was still assigned to the district of Z or another vehicle registration district;
in the alternative,
order the defendant to register the second-level domain name "z" under the top-level domain ".de" in favor of the plaintiff, as long as a top-level domain with the letter sequence "z" or the defendant offers the general public the registration of third-level domains with at least 350 (three hundred and fifty) second-level domains corresponding to the official vehicle license plate abbreviations under the top-level domain ".de" and at that time the letter sequence "z" was still assigned to the district of Z or another vehicle registration district.
The defendant requests that
dismiss the action.
It is of the opinion that it does not have a dominant market position, and that there is no unequal treatment. Even if one were to assume such unequal treatment, it is justified by an objective reason for a number of reasons. In addition to technical problems, which the defendant discusses in detail, she relies in particular on the fact that the letters "z" represent the abbreviation of a motor vehicle registration district.
According to the domain guidelines it practices, the registration of a domain whose second-level domain corresponds to a vehicle registration district is not permitted. It claims in this regard that it intends to use this second-level domain to offer the public residing in the vehicle registration district the registration of domains at the third level. In doing so, it intends to keep the option of regionalizing the domain offering in Germany open for the future. This policy has also been applied by it to date for corresponding three-character second-level domains ".de". All of the three-character domains it has assigned, which still correspond or corresponded to the license plate of a motor vehicle registration district, were assigned before the introduction of the respective motor vehicle registration district. This also applies to all domains registered by its legal predecessor. If the legal predecessor actually carried out registrations in individual cases despite an already existing license plate, this does not bind the defendant in any case.
For further details regarding the facts of the case and the state of the proceedings, reference is made to the written submissions and their annexes submitted to the files.
Reasons for the decision:
The admissible action is unfounded.
The plaintiff cannot demand that the defendant register the second-level domain "z" under the top-level domain ".de" - not even in the form of the plaintiff's alternative claim - under any legal aspect. In particular, it has no claims under §§ 20 (1), 33 (3) GWB.
1. Even if one assumes unequal treatment on the part of the defendant by not awarding the domain in dispute in the case of a dominant market position on the part of the defendant, this is in any case justified.
Whether an objective reason justifies the unequal treatment is to be decided on the basis of a comprehensive, case-by-case weighing of interests. In this context, the principle must be assumed that the addressee of Section 20 (1) and (2) of the German Act against Restraints of Competition (GWB) can also shape his entrepreneurial behavior as he sees fit in economic terms, although arbitrary behavior must not be privileged. Furthermore, the measure restricting competitionbe objectively appropriate and reasonable, which primarily requires compliance with the principle of proportionality and thus the choice of the mildest means (OLG Frankfurt am Main, BeckRS 2008 09763).
The defendant's domain policy of not registering second-level domains that correspond to the abbreviation of a German vehicle registration district constitutes an objective reason.
a. In this context, it is first of all clear to the Chamber that the defendant applies this domain policy.
In addition to the existence of the guideline, the fact that only 13 of the (three-digit) second-level domains that correspond or corresponded to a license plate are registered, as stated by the plaintiff, already casually suggests that the guideline is generally applied. In view of the large number of vehicle registration districts, such a small number of registrations would not prevent the directive from being applied in principle. Moreover, the defendant has also provided a comprehensible explanation for the registration of these 13 (three-character) second-level domains under the top-level domain ".de". With regard to the domains asz.de, mek.de, mtl.de and nol.de, it is clear from the submitted Annex B20 that these abbreviations for vehicle registration districts do not or no longer exist. But it is also clearly shown with regard to the remaining domains that the respective vehicle registration districts did not yet exist when the domain names were assigned.
The implementation of the directive is also supported by the answer provided on the defendant's website (section "frequently asked questions") to the question of why abbreviations of German vehicle registration districts are not registered as domains. Here, the defendant itself clearly expresses to the public that corresponding plans exist and that these are the background for the application of the procurement directive to this extent.
b. The plaintiff's unsuccessful argument that the defendant has indicated by its own delay that the alleged purpose is no longer being seriously pursued. The technical difficulties raised by the defendant in this context, regardless of their actual extent, at least represent a comprehensible reason not to pursue implementation at the moment. In view of the entrepreneurial leeway to be granted to the defendant in this respect, it cannot be objected to if she has currently opted for a technically secure route from her point of view. Furthermore, the existence of the thirteen three-character second-level domains mentioned would currently already stand in the way of a complete implementation. However, the Chamber is unable to see that this would definitively stand in the way of an implementation. It is particularly conceivable that with regard to the 13 three-character domains mentioned, the possibility of complete implementation will arise in the future as a result of the return or elimination of the respective vehicle registration districts, as has already happened in four cases. The same applies to the technical problems of one- and two-character domain names considered by the parties.
c. There is also a legitimate interest on the part of the defendant in applying the aforementioned provision of the Directive on the Allocation of Domains. The defendant has explained in this regard that it wishes to preserve the option of dividing up the namespace under the top-level domain ".de" regionally and thus expanding it. The idea is to use the abbreviations for the vehicle registration districts as second-level domains and then to offer the public the registration of domains at the third level.
On the basis of the required weighing of interests, it can be seen that the background to the refusal to grant second-level domains corresponding to vehicle registration districts in any case justifies the potential unequal treatment of interested parties for corresponding domains. In this regard, it must be taken into account that the defendant may organize its business conduct as it deems economically reasonable, as long as the restrictive measure is objectively appropriate and reasonable.
The non-allocation of certain second-level domains appears objectively appropriate if it serves - as in the present case - to enable a larger number of interested parties to register. It is undisputed that more than twelve million domains are currently registered for the top-level domain in question, so that it is becoming increasingly difficult for interested parties to come up with designations for second-level domains that meaningfully represent their person or their company, but have not yet been registered. This problem is alleviated by the intended measure. It seems appropriate to use such second-level domains as a common registration level for third-level domains that correspond to vehicle registration districts for the intended multiplication of the number of available domains. By bundling various third-level domains under the name of a vehicle registration district, a meaningful and comprehensible assignment criterion is created for the traffic, so that the meaningful designation of the third-level domain intended by the interested parties is ensured.
The plaintiff objects without success that such regionalization will not be enforced due to the attitude of the public. A significant number of websites have a regional reference, so that for this reason alone, the public is assumed to have an interest in such regionalization. A comparison with the number of registered domains under the top-level domain "com" is also inconclusive. Due to internationalization, this offer is aimed at a much more diverse public. As a result of the multilingualism of this public, there is a significant increase in meaningful and interesting character combinations for the use of domain names.
The fact that it is possible in other countries such as the USA, Poland, Sweden and Japan, according to the defendant's uncontested submission, to already register regional sub-domains under the name of the locality, district, city or region – in each case as a second-level domain under the country-specific top-level domain.
2. Since there was an objective reason for refusing to register the second-level domain "z" under the top-level domain ".de", the alternative requests are also unsuccessful. This applies first of all to the first auxiliary request, which merely refers to the technical problems cited by the defendant.
But the action is also unsuccessful with regard to the second and third auxiliary requests, which aim at a provisional admission of the domain name. In this respect, too, the defendant can – in line with the above statements – invoke an objective reason. In particular, the possibility of a provisional but conditional admission of the domain cannot be stopped here as a reasonable, milder measure in the context of weighing the interests in favor of the plaintiff. This is because it would effectively make it very difficult to implement the regionalization of domain names. If one followed the plaintiff's argumentation, the defendant would have to provisionally assign domain names for all – currently 385 – registration districts, but conditionally. However, the condition of the provisional granting, namely the introduction of the regionalization concept, would in this way become a purely internal matter for the defendant. Due to the de facto allocation of all domain names concerned, it would be almost impossible for the defendant to prove that the condition had been met. In any case, extensive and protracted legal disputes would be expected, which would stand in the way of realizing the concept. Even taking into account the interests of the plaintiff, a provisional but conditional registration does not therefore prove to be a reasonable, milder means.
The decision on costs is based on § 91 ZPO. The decision on provisional enforceability is based on § 709 sentence 2 ZPO.
Rau RiinLG Wehn-Sälzer Kirschbaum
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