GermanAmericanLaw [June 21, 2003]
German and American jurisdiction to "Cybergriping"
by Nicholas Zeller
The indignation of enterprises about "Cybergriping" and "complaint names" rises and to critic sees themselves always further reduced in its liberties, but the courts on both sides of the Atlantic place the liberty of opinion as a rule over the trademark law complaints of the enterprises. The jurisdiction did not develop yet, but it tends, both in Germany and in America, to it, to judge this kind of the complaint form as rightfully as long as the enterprise of such Website is not criminally relevant.
As "Complaint of names" are generally considered complaint URLs, which contain the name of an enterprise as Domain with an additive as "sucks.com". The courts feel the distinctiveness of such complaint sides of the protected mark and the Orginal Website of the trademark law owner usually as sufficient. They assume visitors do not discover from coincidence such Website, if they want to visit the enterprise side. Differently the cases lie, in which not personal, but economic interests play a role then one speaks however of Cybersquatting.
In America the case, The Taubman Co. decided. v. Webfeats/Henry Mishkoff, only recently before the Federal Court of Appeals. Here a Web designer, provided Henry Mishkoff, a "fan side" over a shopping centre in the emergence and thereupon of the owner for attitude of the Website sues. The first federal judicial instance in Michigan decided that the deplored one had to turn its "fan side" as well as its again registered complaint sides off, since this Websites hurts the trademark law under the Lanham act. The Federal Court of Appeals corrected however that the Lanham was unanwendbar act, since the Website is not used for commercial purposes. The deplored one could start thus its Websites again and gives now on these the case very in detail again with www.Taubmansucks.com.
In Germany the regional court Berlin in the case eleven decided gg. Greenpeace still recently debited to of Greenpeace. It judged the Domain of the Greenpeace side "oil OF elf.de" too confusable with the official eleven Website and forbade to Greenpeace the enterprise of these Domain.
But short time decided Greenpeace the court later in the case Shell gg. that with the Greenpeace side "stoppesso.de" a sufficient distinctiveness was not hurt given and therefore the trademark law.
Thus announcing of alleged absence rides of an enterprise or a person might be legal by a Website, if economic interests did not play a role, under normal conditions in both jurisdictions.
The past jurisdiction shows no freischein for the indiscriminate Denunzieren however surely. The foundation-stones for a more reliable iurisdiction in the mark and Domainrecht are still put in particular. At employees is besides of consequences pertaining to labour law to be thought, how the Opelaner case shows.