Domain Name Disputes

Domain name disputes over .de domains: how they differ

Domain name disputes over .de domains follow a different path from disputes over generic top-level domains such as .com. There is no Uniform Domain-Name Dispute-Resolution Policy (UDRP) for .de. DENIC eG, the registry for .de, does not decide who is entitled to a domain.

Instead, rightholders must assert their claims against the domain holder under German civil law — name rights, trade mark law and unfair competition law — before the civil courts or by agreement. DENIC supports this with a specific instrument: the DISPUTE entry, which freezes the domain during the dispute and transfers it automatically to the claimant if the holder releases it. For .com and other generic domains, the UDRP offers a fast administrative procedure; for .eu, a separate alternative dispute resolution procedure applies.

Typical domain name disputes include cybersquatting (registration of a company or brand name to sell it), typosquatting (misspellings to divert traffic), registrations by former business partners or employees, competitors registering names to obstruct, and genuine conflicts between two parties with legitimate rights in the same name.

Legal bases for claims

German law offers several grounds:

• Name right (§ 12 of the Civil Code, BGB): protects names of natural persons, companies, municipalities and other entities against unauthorised use. Registering someone else's name as a domain can constitute unauthorised use of the name (§ 12 BGB), because it blocks the name holder from using its own name under the .de domain.
• Trade mark and business designation rights (§§ 14, 15 of the Trade Mark Act, MarkenG): apply where the domain is used in the course of trade in a way that infringes a mark or company designation — for example a website offering competing goods. Mere registration without use is generally not trade mark use.
• Unfair competition (§ 4 no. 4 of the Unfair Competition Act, UWG): targeted obstruction of competitors, for example registering a competitor's name to block or divert customers.
• Tort (§ 826 BGB): intentional immoral damage, for example registration solely to extort payment.

The legal remedies vary. Under the name right, the claimant can demand that the holder cancel the domain registration (Löschung), which, combined with a DISPUTE entry, leads to transfer. A direct claim for transfer of the domain is generally not available under German law; the combination of cancellation and DISPUTE entry achieves the same result.

Priority and equal rights

Domain registrations follow the first-come, first-served principle. Where both parties have legitimate rights to the name — for example two companies with the same surname or a common word — the first to register generally keeps the domain. Exceptions apply where one name has exceptional reputation, so that the public expects the domain to belong to that rightholder. Generic terms (such as product categories) can usually be registered by anyone, subject to rules against misleading or obstructive use. A domain consisting of a generic term may, however, be misleading if it suggests a unique market position the holder does not have, which competitors can challenge under unfair competition law.

The DENIC DISPUTE entry

The DISPUTE entry is the key procedural tool in .de domain name disputes. According to DENIC, the applicant must first obtain information about the domain holder from DENIC, show its name or trade mark rights and show that it has started measures to enforce its rights against the holder. The entry has three effects: the holder can continue to use the domain, but the domain cannot be transferred to a third party while the entry exists, and if the holder releases the domain, the DISPUTE applicant automatically becomes the new holder. The entry is valid for one year and can be extended if the dispute is still ongoing.

Procedure in practice

1. Identify the holder: request holder data from DENIC; DENIC discloses data to parties who show a legitimate interest, for example a rightholder.
2. Secure the domain: apply for a DISPUTE entry.
3. Send a warning letter: demand cancellation (and, where relevant, cessation of infringing use), with a deadline.
4. Court action: if the holder does not comply, sue for cancellation and injunctive relief; preliminary injunctions are possible where use infringes and urgency exists, but cancellation itself is usually pursued in main proceedings.
5. Transfer: once the holder cancels the registration voluntarily or after a judgment, the domain passes to the DISPUTE applicant.

Generic domains: UDRP and other procedures

For .com, .net, .org and most other generic top-level domains, the UDRP offers an administrative procedure before providers such as the WIPO Arbitration and Mediation Center.

The complainant must show that the domain is identical or confusingly similar to its trade mark, that the holder has no rights or legitimate interests and that the domain was registered and is being used in bad faith. Decisions are typically issued within a few months and implemented by the registrar, with the possibility of court proceedings. The .eu domain has its own alternative dispute resolution procedure. Many new generic top-level domains also offer rapid suspension procedures for clear cases. Under the reformed EU regime for agricultural geographical indications, country-code registries in the EU must recognise registered geographical indications in their alternative dispute resolution procedures.

Domain name disputes with former partners and employees

Many domain name disputes arise within relationships rather than with strangers: an agency registered the company's domain in its own name, a former distributor keeps the domain with the manufacturer's brand, or a co-founder who left the business holds the start-up's domain.

In such cases, contractual claims often provide the clearest route — agency and employment contracts, distribution agreements and shareholder agreements may oblige the holder to transfer the domain, and fiduciary duties can apply where the domain was registered for the company. Where contracts are silent, name and trade mark rights and the principles of agency law usually support the company's claim. Our insight on goodwill indemnity for commercial agents addresses related end-of-relationship issues.

Typosquatting, phishing and urgent measures

Typosquatting domains are often used for phishing, fake shops or malware. Here speed matters more than legal elegance. Besides claims against the holder, rightholders can notify registrars, hosting providers and platforms under the Digital Services Act's notice-and-action rules, report phishing to the Federal Office for Information Security and the police, and ask browser and security providers to block the domain. Preliminary injunctions against use are available where the holder can be identified. For .de domains, a DISPUTE entry prevents the holder from moving the domain while action is taken.

Holder data and privacy

Since the GDPR, public WHOIS data for .de domains held by natural persons are restricted. DENIC discloses holder data to parties who demonstrate a legitimate interest, such as a rightholder with a specific claim. EU rules on network and information security also require registries and registrars to maintain accurate registration data and to provide access to legitimate access seekers, which supports enforcement against anonymous holders. Rightholders should document their rights and the infringing use when requesting data.

Illustration

Illustration: a hypothetical German machine builder discovers that a former Asian distributor has registered the company's name as a .de domain and redirects it to a competitor's website. The company requests the holder data from DENIC, files a DISPUTE entry, sends a warning letter demanding cancellation and cessation of use based on § 12 BGB and its trade mark, and — after no response — obtains a preliminary injunction against the redirection and sues for cancellation. After the judgment, the holder releases the domain, which passes automatically to the company under the DISPUTE entry.

Preventive measures

• Register core brand names under .de, .eu, .com and relevant country domains and common misspellings.
• Align domain registrations with trade mark filings; register domains in the company's name, not an agency's or employee's.
• Use registry lock services for critical domains to prevent unauthorised changes.
• Monitor new registrations containing your brands and act quickly on suspicious ones, before they are used for phishing or fake shops.
• Include domain ownership and transfer obligations in agency, distributor and franchise agreements; see our insight on franchise agreements.

Costs, timing and settlement

Most domain name disputes settle. A well-reasoned warning letter combined with a DISPUTE entry removes the holder's ability to sell the domain to third parties and often leads to voluntary cancellation. Where the holder demands payment, the claimant should weigh the cost of litigation against the amount demanded, but paying cybersquatters encourages further registrations, and German courts have found demands for payment to be an indication of abusive registration. Court proceedings in Germany typically take several months at first instance; the costs depend on the value in dispute, which courts set according to the economic importance of the domain. The losing party bears the statutory costs.

UDRP proceedings are usually faster and their fees are fixed by the provider, but they are available only for generic domains and only in clear cases of bad faith. Where the facts are disputed — for example where both parties have rights — court proceedings are the more appropriate forum.

Domains in transactions and insolvency

Domains are valuable assets. In M&A transactions, the buyer should verify that domains are registered in the name of the target company, that registrar accounts are controlled by the company and that no DISPUTE entries or proceedings are pending. In the insolvency of a domain holder, the domain forms part of the insolvency estate and can be sold by the administrator; rightholders with claims should assert them promptly. In the insolvency of a registrar or reseller, holders should ensure that they can move their domains to another provider.

How TRW & Co helps with domain name disputes

We act for companies and individuals in domain name disputes over .de and other domains: identifying holders, filing DISPUTE entries, sending warning letters, bringing court actions based on name, trade mark and unfair competition law, and conducting UDRP and .eu proceedings. We also advise on domain portfolio management and contractual protection. See our page on trademarks and designs and our insight on trademark clearance and opposition, or contact us.