Case law

  • Case Details
    • National ID: 29 U 2590/10
    • Member State: Germany
    • Common Name:bayerischespielbank.de
    • Decision type: Court decision in appeal
    • Decision date: 28/10/2010
    • Court: Higher Regional Court Munich
    • Subject:
    • Plaintiff: The Free State of Bavaria
    • Defendant: not disclosed
    • Keywords: confusing marketing, misleading actions, misleading commercial practices, trade mark
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (a)
  • Headnote
    The use of Internet domain names as so called "parking websites", under a name which an average consumer associates with a completely different company, constitutes a misleading commercial practice in terms of Article 6 UCP Directive, if a trader (operator of the domain name) chooses this name to deliberately attract consumers who originally wanted to visit other websites associated with that name.
  • Facts
    The defendant operated so called "parking websites" under the domains "bayerischespielbank.de", "bayerischespielbanken.de" and "bayerische-spielbank.de". Parking websites entail the registration of an Internet domain name without using it for services such as e-mail or a website, hence without placing any content on the domain. 

    "Bayerische Spielbanken" (Bavarian Casinos) were casinos in Bavaria (i.e. Freistaat Bayern) that were owned by the state.The defendant was a private company which had no relations with the Free State of Bavaria or its casinos.

    Third companies could buy web space on these parking websites with links to their own websites.

    The plaintiff requested a cease-and-desist order for the use of such domain names.
  • Legal issue
    The court found that the plaintiff and the defendant were competitors in the sense of § 2 para. 1 no. 3 UWG in respect of the use of the registrable domains in question. 

    The court further established that the registration and use of domain names which an average consumer brings in connection with the state owned casinos, constitutes a misleading commercial practice in terms of § 5 I UWG as they mislead consumers about the identity trader operating these websites.

    The court thus concluded that the defendant committed a misleading commercial practice.
  • Decision

    Is the use of domain names which an average consumer brings in connection with a different company, a misleading commercial practice?

    Full text: Full text

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  • Result
    The plaintiff's request was granted.