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Submission + - Domain google.de apparently kidnapped

Christian_Franz_LL.M writes: "On tuesday night, someone appears to have managed to be registered as the holder of the domain "google.de". The service of the German section of Google Inc. was unavailable, displaying only an "under construction" message.

This appears to be an extraordinarily spectacular attempt in suicide, lest the apperent new domain holder, a Mr. Martin Rusteberg of Germany, happens to hold prior rights in the string "google". A quick search revealed that there are no trade marks registered in Germany (https://dpinfo.dpma.de/protect/mar.html), with OAMI with respect to European trade marks (http://oami.europa.eu/CTMOnline/RequestManager/) nor with the WIPO with respect to so-called international trade marks that might have been extended to cover Germany (http://www.wipo.int/ipdl/en/search/madrid/search- struct.jsp). This should allow Google Inc. to sort out the problem by means of an injunction by a German court within the day or a couple of days at most.

This might be different though, should the current domain holder turn out to have any other kind of rights in the string "google" himself, e.g. using it as a company identifier prior to Goolge Inc.'s market entry in Germany.

Unlike other TLDs, the German registrar DENIC e.G. (http://www.denic.de)does not provide a dispute resolution procedure. That means that the possible kidnapping of the domain will be subject to German jurisdiction. That means that while, for example, the ICANN Uniform Dispute Resolution Policy (http://www.icann.org/udrp/) allows for "soft arguments" to be brought forward and domains to be transferred directly if there is no response by the defendant, arbitration in front of a German court could turn out to be more difficult that one might, at first sight, expect.

Whilst there can be little doubt that google would eventually succeed in regaining the domain due to it's overwhelming fame, the path to victory could turn out stony.

There is juristdiction by Germany's Federal Court of Justice that accepts that in a conflict of prior rights, the rights of a party that has what has been described as "an absolute reputation", prevail (BGH, Urt. v. 22.11.01, I ZR 138/99 — shell.de, http://netlaw.de/urteile/bgh_13.htm).

Still, it is rather unlikely that this concept would be sufficient to allow Google Inc. to achieve an injunction under German law. This is due to the requirement that no injunction must anticipate the final decision — which would be the case if the current domain holder was forced to cancel the domain.

By the way: under German law, no right holder can ask for a domain to be transferred. It has to be cancelled and can then be re-registered by the rights holder. Google Inc. will have to ask for a so called dispute entry by the registrar Denic e.G., which will bar the domain from any further transactions, and then go to court really, really quickly.

Depending on whether or not the current registrant has any prior rights, this might turn out as a finacial suicide or the easiest way to earn real money without any effort at all — if, which is not unlikely, Google Inc. decides to cut things short and buy the new registrant out. Which, I have a tinkle, may have been the idea in the first place.

Still, this is high rolling: from both a legal and a financial point of view, it would have been less risky just to rob a bank. It's probably just that geeks aren't any good at this sort of thing, in contrast to the fine detail of domain registration policies...

For further information on German internet law, visit http://www.netlaw.de/ or just ask: cfranz@christianfranz.net.

Christian Franz, LL.M.
(Attorney at Law)
Düsseldorf, Germany"

If a camel is a horse designed by a committee, then a consensus forecast is a camel's behind. -- Edgar R. Fiedler