An unauthorized usurpation of name § 12 Sentence 1 Old. 2 BGB is available, if a third party, der kein Recht zur Namensführung hat, illegally used the same name as the name of carrier, dadurch eine Zuordnungsverwirrung eintritt und schutzwürdige Interessen des Berechtigten verletzt werden, what can be affirmed regularly in case the name of a local authority in a second level domain.

 

KG by 15.03.2013 – 5 You 41/12 – berlin.com

The dispute

has 5. Civil Division of the Superior Court, Elßholzstraße 30 – 33, 10781 Berlin, to the hearing
at the 15. March 2013 through … hereby:

I. On appeal by the plaintiff, the judgment of the civil court 12 the District Court of Berlin 1. March
2012 – 12 The 407/11 – amended as follows:

The defendant is sentenced, it by avoiding a deadline set for each violation
Administrative fine of up to 250,000 €, alternatively, order custody, or imprisonment up to six
Months, To accomplish the latter to the manager of the defendant, to refrain,
the Internet domain "berlin.com" through the provision of consumer information about the capital of Germany
to leave to use and / or use, if so how on page 3 of the country court judgment
reproduced happens.
II. The costs of the proceedings before both courts must bear the defendant.
III. The judgment is provisionally enforceable.
The defendant is diminished, enforcement for failing to security in the
Height of 150,000,00 € (and because of the costs up to the amount to be recovered) avert,
unless the applicant before the enforcement of the failure security of 150,000,00
€ (and because of the costs up to the amount to be recovered) makes.
IV. The revision is not approved.
A. The plaintiff goes against the defendant because of a violation of the right to his name before.
The defendant is the owner of the domain "berlin.com".
In early February 2011 the defendant published the contents under this domain, as K from the system
9 are visible to the application.
The top of the first page of this website is subject to the omission of the defendant's application
des Klägers.
The applicant sought,
order the defendant under penalty of law and order means, to refrain,
the Internet domain "berlin.com" through the provision of consumer information about the capital of Germany
to leave to use and / or use, if this appears as follows in the application
happens.
The defendant applied, dismiss the action.
By the 1. March 2012 proclaimed judgment, the district court dismissed the action. To this extent,
Please refer to the first instance judgment, even in respect of the other arguments at first instance
the parties.
The applicant in the appeal against this judgment. He repeated and deepened its first instance
Performance.
The applicant claims,
the judgment of the District Court of Berlin 1. March 2012 – 12 The 407/11 – to change and the defendant under threat
the legal order means to condemn, to refrain, Internet Domain "berlin.com"
to use and / or use by providing consumer information about the capital of Germany
let, if, as in the writing of the grounds for appeal 27. June 2012 displayed below
happens.
The defendant claims,
appeal dismissed.
For further details of the arguments of the parties is presented on the content of the exchanged
Referenced pleadings and the annexes.
The Senate has the files Landgericht Berlin 101 AR 11/11 (Schutzschrift) and 12 The 129/11 (= Court of Appeal
5 You 106/11, Procedures to the interim injunction) consulted and the subject of the
made hearing.
B. The defendants' appeal is admissible and well founded.
The injunction to, the Internet domain "berlin.com" through the provision of consumer information
to leave to use and / or use on the capital of Germany, if so how on page 3
the country court judgment happens reproduced, must be upheld.
I. The action may be.
1. The international jurisdiction of German courts have.
This arises as a result of the defendant on appearance of type. 24 EuGVVO, if one considers
shares, the provision also find application, if none of the parties (so: Schlosser, EU-
3 –
Civil Litigation, 3. Ed, Art. 24 EuGVVO, Rn 1) or only the plaintiff (so: Auer: Geimer / Schütze, International
Legal relations in civil- and commercial matters, Art. 24 EuGVVO, Rn 12; Geimer in: Geimer / Schultze,
European Civil Procedure Law, 3. Ed, Art. 24 EuGVVO, Rn 22 ff; Gottwald / nail, International Civil Litigation,
§ 3 , Rn 172; Gottwald in: Munich Commentary, 3. Ed, Art. 24 EuGVVO, Rn 4; Kropholler /
Hein, European Civil Litigation, 9. Ed, Art, 24 EuGVVO, Rn 3; Hüsstege in: Thomas/Putzo,
ZPO, 32. Ed, Art. 24 EuGVVO, Rn 1) is established in a Member State.
No one follows the ideas presented above and accesses according to type. 4 Abs. 1 EuGVVO to German
Process right back, arises due to the international jurisdiction of German courts on appearance
The defendant from entering an § 39 ZPO (vgl. BGH NJW 2009, 1205).
2. The doubts raised by the defendant on the coefficients of determination of the application for injunction
do not attack.
Contrary to the defendant seeks the application for an injunction, as is clear from its wording
results ("Internet Domain … to leave to use or use, if as shown below
happens: …”), a ban on the concrete form of injury from.
The more detailed description of the type of use, which the plaintiff seeks ban ("By providing entertainment
of information about Germany's "capital), can not naturally an action on target
be directed, that goes beyond the specific form of infringement. Such descriptions of concrete
Type of injury were therefore regularly regarded as harmless over-determination. However, you should
make clear, the extent to which the applicant about the circumstances of the specific conduct in question
acts of infringement, other than in the core look alike. (vgl. BGH GRUR 2011, 340 –
Irish butter, Rn 24)
The specific conduct in question is the distribution of content under the domain "berlin.com"
in the form of, as resulting from the insertion of the upper part of the first page of the website.
With the addition of the applicant clearly, that he regards as acts of infringement in the core similar,
if the posted information about Berlin against other information about the "capital
Germany "to be replaced. Then stand against the version of the application for injunction
no concerns.
3. The application is not missing the need for legal protection.
The opinion of the defendant, with the application for an injunction the plaintiff could not name a breach
(completely) prevent, because already the registration of the domain name constitutes a violation of, meets
basically.
But it is for the claimant, to determine its legal target. Protection may not be him
be refused solely on, because he is content with less accessible than in his legal position
would.
4. Any enforcement problems in the U.S. do not affect the legal interest of the plaintiff. In
the Federal Republic of Germany is the injunction enforceable anyway.
B. The injunction the plaintiff arises from § 12 BGB.
1. The applicability of German law follows from Article. 40 Abs. 1 Sentence BGB.
2. A contractual obligation of the plaintiff, not take legal action against the defendant, consists
not.
This is true, therefore,, because the plaintiff is not a party to the agreement, to which the defendant
refers to the extent.
3. An unauthorized usurpation of name § 12 Sentence 1 Old. 2 BGB is available, if a third party, of no
Has right to name leadership, illegally used the same name as the name of carrier, thereby
an assignment confusion occurs and legitimate interests of the beneficiaries are injured. (vgl.
BGH GRUR 2007, 259 - Solingen.info, Rn 14; BGH GRUR 2012, 304 Basler Hair Cosmetics; BGH GRUR
2012, 534 - Estate Borsig, Rn 8; Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 71)
– 4 –
Is a strange name - the name of a local authority – used as an Internet address, are
Been duly acknowledged in the past conditions of unjustified arrogance name.
(vgl. e.g.. BGH GRUR 2007, 259 - Solingen.info, Rn 14)
Question, whether in light of a changed user behavior in the Internet search or the current
It should be noted developments in the field of generic top-level domains on this principle, provides
not in dispute.
Anyway, in this case specifically objected to the form of the distribution of content over the capital
Germany under the domain "berlin.com" is an unwarranted presumption name.
a) The applicant is a government unit as in § 12 BGB protected right to his name Berlin
to. Because of this designation, he may, under the same conditions as any other bearer of the name
action against a third party without authorization. (vgl. BGH GRUR 2007, 259 - Solingen.info, Rn 14;
Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 74)
Represented by the district court opinion, the plaintiff can name protection only to the designation
Entitled "Land Berlin", can not be accepted.
The applicant's name is - what the applicant also indicates – "Berlin" (vgl. "Constitution of Berlin", in the
the plaintiff is consistently referred to as "Berlin"). He will - as already shows its constitution - this
Name on.
The legal name protection, can claim the statutory body, restricted
But anyway, not in the name, she performs as a public corporation (vgl.
BGH GRUR 2005, 357 – Pro Fide Catholica).
b) The defendant used the name "Berlin" within the meaning of § 12 BGB, by registering the domain berlin.com
and holds this domain in the form of, as resulting from the omission tenor, Content to
Network provides.
A name is as defined in § 12 BGB used, if its use by a recognizable relationship
is made to the name bearers. This is the case here, because a website in this case specifically objected
Shape under the domain berlin.com gives the impression, that the bearer of the name Berlin
behind this, and thus impair the function of the name of the plaintiff as an identity label
is. (vgl. Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 77, 78; Sacker into: Munich Commentary,
BGB. § 12, 6. Ed, Rn 98)
The opinion of the District Court, the defendant used the component "Berlin" as the domain name does not,
but as a place name with only descriptive character, can not be accepted.
aa) Been the starting point of the argument, "Berlin" is a simple word in the German language,
similar to words such as forest, Strand etc., which was also used without any reference to the plaintiff,
not convinced.
"Berlin" is not a generic term, but the applicant's name. The word "Berlin" in isolation
referred to in the German language, the local authority "Berlin", d.h. the plaintiff. What other
"Berlin" it passed in the German language, in addition to the plaintiff to, shows not the district court
onto. ("Berlin" is in any case not by generic, that there is a district of the same name
a municipality in Schleswig-Holstein or cities are the same on other continents.)
bb) Contrary to the opinion of the District Court is not only the function name as an identity label
not impair Attribution ago, such as is the case, when Berlin
sung in songs, and the title of a travel guide, Book, Made city plan or hotel directory
is. (vgl. Sacker into: Munich Commentary, BGB. § 12, 6. Ed, Rn 98)
Domain Names, formed from a top-level domain and a second-level domain, at least
contain a catchword reference to the owner of the website, are - as the market since
long been known - widespread (BGH GRUR 2003, 897 - Maxem.de; BGH GRUR 2012, 304 – Basel
Haar Cosmetics, Rn 39).
This exercise is not just for country-specific top-level domains such as. "En", but also in generic
Top-Level-Domains wie “.com”.
– 5 –
This also applies to German authorities (vgl. OLG Karlsruhe MMR 1999, 604).
A Note, that the domain name is not deviating from this exercise serves to, to the operator
the website, but to point out the there reproached content, not contain the domain
still the home of the offending website. Unlike songs or guides, Books,
Maps or hotel directories, this notice also did not result in isolation of the
Domain or by opening the website and instantly recognizable at first glance.
c) The unauthorized use of a name is, if the user does not own rights to the name
entitled (BGH GRUR 2003, 897 - Maxem.de; BGH GRUR 2008, 1099 – afilias.de, Rn 20; Ingerl / Rohnke,
Trademark, 3. Ed, under § 15, B, Rn 79) and he can not claim the rights of a third party to
(Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 79).
aa) Rights of third parties, could cite here the defendant, are not apparent.
The domain "berlin.com" is on 23. June 1995 of …, been registered.
Question, whether … Exploitation rights to their domain names to subsequent owners, in particular, the defendant,
has transferred, is in the B of the defendant as an attachment 11 to its statement of 13. October 2011
addressed legal opinions submitted and designated as open due to lack of information
been.
Since the defendant has not put forward any, can be assumed, that this does not happen
is.
bb) Own rights to the name "Berlin" or the designation "berlin.com", the defendant to the injunction
could hold against, the defendant - if visible - also not acquired.
(1) Also, by registering a. "De" top-level domain acquires the holder of the internet address neither
Ownership of the domain name itself nor any other absolute right, similar to the ownership
would be reified in a intellectual (BVerfG GRUR 2005, 261; BGH GRUR 2009, 1055 - Airdsl,
Rn 55; BGH GRUR 2012, 417 - Gewinn.de, Rn 12; Ingerl / Rohnke, under § 15, B, Rn 31).
Instead, he receives in return for the DENIC. fee payable to the right, selected
To use domain names, and thus a relatively acting, contractual rights, in which
the indefinite duration of the contract related to the proposed termination options on the
Point character of the legal relationship as continuing obligation (BVerfG GRUR 2005, 261; BGH
Wheat 2009, 1055 -Airdsl, Rn 55; BGH GRUR 2012, 417 - Gewinn.de, Rn 12; Ingerl / Rohnke, under § 15, B,
Rn 31).
(2) Through the use of a domain name can in principle an appropriate corporate ID
in accordance with § 5 Abs. 2 Trademark acquired. However, this requires, that traffic into
the domain name of an indication of a company or the commercial origin of goods or
Recognize services of a company. (BGH GRUR 2008, 1099 - Afilias.de, Rn 22; BGH GRUR
2009, 685 - Ahd.de, Rn 20; Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 148)
Does the owner of the website www.berlin.com there only links to third party sites before, see the traffic but
even, if these links sorted by topic and texts with information about the city of Berlin
embedded, exclusively in the domain name, an address, the – similar to a phone number
– Although identifying the addressee, but is not intended as an indication of the commercial origin. (vgl.
BGH GRUR 2005, 262 - Soco.de; BGH GRUR 2005, 871 - SEICOM; Ingerl / Rohnke, Trademark, 3. Ed, after
§ 15, B, Rn 148)
cc) In a dispute over a domain name can indeed be placed on not only, if the domain holder
a domestic name- or trademark law entitled. For generic Top- Level-
Domains like. "Com" to a name- and Trademarks, even if it is not in Germany, but
is in another state, to, that the domain owner is generally entitled to be regarded as.
(vgl. BGH, Judgment of 13. December 2012, I ZR 150/11 - Dlg.de, Rn 17).
Regard, the defendant has not submitted any.
– 6 –
It also speaks for nothing, that the defendant probably already in the relevant date of registration
der Domain (vgl. Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 84) its own foreign rights
may well have the names "berlin" or "berlin.com".
d) Allocation confusion is likely, if the non-entitled, using a foreign name,
is identified as bearers of the name. However, it is not necessary, that there is confusion with the
Bearers of the name comes (BGH GRUR 2003, 987 - Maxem.de; Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B,
Rn 85), but this here - as will be still perform - the case is.
aa) Such identification occurs, if a third party foreign names names in moderately
used an Internet address. The traffic seems to use a distinctive,
not readily understood as a generic character as Internet- Address a reference to the name
the operator of an internet presence. (vgl. BGH GRUR 2003, 897 - Maxem.de; BGH GRUR
2012, 304 – Basler Hair Cosmetics, Rn 39).
The use of the isolated second-level domain "berlin" outgoing mapping confusion
also exists in a combination with the generic top-level domain. "com". From the use of
Top-level domain. "Com" does not remove the Internet users, that it is the information- and services
is a third party and not the name of the carrier. (vgl. BGH GRUR 2007, 259 - Solingen.
info, Rn 19)
(1) The findings of an association confusion by combining the name of a local authority
with the top-level domain. "com" the Senate can basically based on their own expertise
meet, and without an understanding of international traffic to determine. The range of information
"berlin.com" a domestic city to the domain name addresses, particularly when
be kept German language content - under the domain - as here, intended also to
German Internet users. Assign them to the domain name "berlin.com" inapplicable to the plaintiff, enough
this for the adoption of an allocation of confusion, without foreign to the understanding of transport
Internet users arrive. (vgl. BGH GRUR 2007, 259 – solingen.info, Rn 20)
(2) Of Internet users is based on the mapping of the domain name to a name primarily support
an der Second-Level-Domain, here, "berlin". The general top-level domain. "Com", however, is not suitable,
on the assignment of the name "Berlin" to the German city of the same name as the name of carrier
to change something. Although it can not be excluded, that general, not country-specific top-level-
Counteract a domain name in association with specific, if this is not the typical
Nutzern derartiger Top-Level- Domains are attributable. (vgl. BGH GRUR 2007, 259 - Solingen.info, Rn
18)
Such domains, the top-level domain. "Com" does not expect. It is neither industry- more
country basis and also according to other criteria not limited to one group of bearers of the name (vgl. BGH
Wheat 2007, 259 - Solingen.info, Rn 18; KG MMR 2007, 601). In particular, contains a ". Com" domain
(today) no indication, behind a company that the domain of the private sector is.
It is for the well informed and circumspect Internet users not in themselves evident,
dass. "com" für "commerce" oder "commercial" steht. In the context of Internet addresses
in any case it also suggests, this is an abbreviation of "Computer" (vgl. also the journal title "com! The
Computer Store ") or to keep the "communication".
It may be, that at least a part of the relevant public known, that. "com" is a generic
Top-Level-Domain ist, which was originally intended only for companies and as an abbreviation for the
English terms "commerce" or "commercial" is.
Since there but for years no restrictions on the registration of domains and has given more
are, - as well as the parties put forward consistently – a variety of ". com" top-level-
Domains held by legal entities and individuals, that no corporate support are (vgl. also
KG MMR 2007, 601; Bettinger, Handbook of domain law, S. 31). The arguments put forward by the applicant
Domains, authorities whose owner, Behörden etc.. are, may be exemplified here.
This actual development has led to, that may initially present
Eignung von. "Com" Top-Level- Domains, counteract an assignment to name sources, not
among private enterprises, is lost.
The same applies, far. "com" top-level domains previously associated only company in the U.S.
have been.
– 7 –
(3) The confusion over the identity of the operator of page www.berlin.com may not be considered in
particularly serious, when it is eliminated by the opening to rapidly return home, so dass
presupposes an unauthorized name presumption in these cases, that thereby the legitimate interest
name of the carrier is particularly impaired in. (BGH GRUR 2003, 897 - Maxem.de; BGH
Wheat 2012, 304 – Basler Hair Cosmetics, Rn 39; Ingerl / Rohnke, Trademark, 3. Ed, under § 15, B, Rn 85)
The rapid removal of the assignment of confusion after the opening of the site can be here in the
rater design of the website under "berlin.com" however be no question. Contrary to the view
the District Court not submit this information in the Contacts page of the "berlin.com" far from.
For one, the Internet user has the mistaken idea about the identity of the site owner in doubt
formed even before the page has. On the other hand, the Internet users, which refers to only the
the side information held and links around the city of Berlin, Hotel- and travel packages etc.
interested, regularly no reason, display the imprint of the page.
and) Which in this case specifically objected to the defendant's website under the domain "berlin.
com "affected the legitimate interests of the applicant, because he is not only a mapping confusion
triggered, but immediate confusion has established.
It has passed the danger, that an average consumer, sensible and appropriate to the situation
observant visitors to the site keeps the website of the defendant for the plaintiff.
The home page can be seen at first sight, held that there information and assistance
will, intended primarily for Berlin visitors and tourists.
Under the heading "Berlin.com", pointed out in writing by the size and strength of the component "Berlin"
is, guide the keywords "hotel booking", "Flight booking", "Weather", “Live Events”, “Locations”, “Hotel”,
"Program", “Info”, "Tips" for the average internet user obviously to services and products
more, which are useful in the preparation and organization of a stay in Berlin for a Foreign.
However, the traffic is accustomed for years, that authorities with the aim of
Spread promotion of tourism and tourism advertising in the internet under domains, consisting
the name of the corporation as a second-level domain and the top-level- Domain. "Com" are formed. This is
is the extent to which already mentioned in another connection decision of the OLG Karlsruhe (MMR
1999, 604) referenced.
This is also the argument of the plaintiff in the application to internet sites of many German
Städte unter. "Com" Domains.
The information in the imprint were d from below) these reasons also not suitable, the likelihood of confusion
remove.
f) Within the possibilities offered in behalf injury law balancing of interests, the non-entitled
not invoke a rule to sensitive issues, to take into account in his favor
would (vgl. BGH GRUR 2008, 1099 - Afilias.de, Rn 27).
This also applies here.
It has to be considered when balancing the interests, that the prohibition is narrowly confined
and the defendant does not prevent, the domain "berlin.com" for the intended purpose in their "World
Travel Media Network of sites to use "and then information from the field of tourism and
To spread tourism with respect to Berlin, if this is done in a manner, a
Precludes confusion with the plaintiff.
Accordingly, values ​​must protect interests of the defendant, To use the site, especially in the form of,
which has been specifically attacked in this litigation by the plaintiff pursuant to the above
Justified confusion, be all the more weighty, when used in the balancing of interests
should give the benefit of the defendant rash.
Such weighty concerns of the defendant can not be identified.
– 8 –
The effort, to make the home page under the domain "berlin.com" as, that immediately and unequivocally
is recognizable, not that the plaintiff runs the site, appear in chronological, technical and financial
Way not so high, that he might be significant here.
Indeed, it was the defendant - as her lecture in response to the appeal shows - already possible, the
To induce operators of search engines, take notes in the "Snippets", that the displayed
Side is privately owned and is not connected with government or the State of Berlin.
g) On the basis of the arguments of the defendant's alleged injunction is not
forfeited.
The forfeiture of defense of claims under general principles presupposes Trademarks,
that as a result of a prolonged uninterrupted use of the disputed term in claim opponents
one worthy of protection acquis has arisen, the retained him in good faith
to, because he could trust because of the behavior of the owner, This tolerate the
Use of the sign. (vgl. BGH GRUR 2008, 1104 - House & Basic II, Rn 33, Ingerl / Rohnke, Trademark,
3. Ed, § 21, Rn 25).
Even the naming rights forfeiture rights are generally based on these rules (vgl. BGH
Wheat 1989, 449 - Maritime; BGH GRUR 1993, 151 - University Emblem; Ingerl / Rohnke, Trademark, 3. Ed,
under § 15, B, Rn 27; Sacker into: Munich Commentary, BGB, 6. Ed, § 12, Rn 178).
The defendant's argument is not sufficient, to the existence of a legitimate acquis
justify.
Adopting a legitimate acquis is substantiated statements about the degree of awareness,
to the turnover of using the offending mark and possibly
appropriate advertising expense requires (vgl. BGH GRUR 2008, 1104 - House & Basic II, Rn 33).
The defendant extensively prior to investment, as the general investment in their company
or. represent the project of a network of domains with geographical names.
However, it does not define concrete expenses for the page www.berlin.com explained they represent, as
Page has been involved specifically in this network, so that the total expenses of the domain
are at least partially attributable.
Given the arguments of the defendant in the pleading of 13. October 2012, the number of visits to their
Page berlin.com currently vacillate between 4.740 and 8.310 per month, and corresponds roughly in
Average numbers of 2007, during the month of berlin.de page 6.294.575 'm Visiting users,
appears to have acquired the domain name of the defendant does not offer a high level of awareness.
The same applies, the extent that the defendant argues, in 2010 - So a long time before adopting
the injunction of the District Court of Berlin in the process 12 The 129/11 – to have the number of
Undersides of extremely reduced www.berlin.com (of 19.088 Under Pages in the years 2008/2009 onto
1.575 Pages).
Against this background, an attempt by the defendant, the page www.berlin.com as one of eight
Represent key sites of the network, their absence the network inflicted considerable damage,
not convincing. Considering the narrow range ban, of not just to a complete
Failure of the page for the intended use will, This applies to an even greater degree.
i) The district court has seen in the conduct of the defendant no presumption name, but
Exercise of the type. 5 GG legal rights.
Perhaps the district court misunderstood the purpose of application failure.
The plaintiff to do it - as stated – to the prohibition of the concrete form of infringement ("If this
as reproduced below happens "), d.h. name in violation of the prohibition on the way,
as it actually is, in particular by maintaining German information services.
The new addition to the application "through the provision of consumer information about the capital of Germany"
is the elaboration of the characteristic name of the happened violation, but not
aiming, to prevent the free coverage of Berlin.
– 9 –
C. The cost is based on § 91 Abs. 1 ZPO, the decision on the provisional enforceability
to § 708 No.. 10, § 711 ZPO.
The revision is not to allow (§ 543 Abs. 2 S. 1 ZPO). The decision follows the Supreme Court
Court, and it is based on the particular circumstances of the present case.

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