*Austrian Supreme Court: Generic Top Level Domain ‘.com’ Might Decrease The Likeliness of Confusion

The Austrian Supreme Court in a recent decision (OGH, 18.01.2011, 17 Ob 16/10t, Schladming.com) has slightly liberalized its very strict practise concerning the registration of names of cities as domains.

Although the court stuck with its previous rulings according to which the content of the website remains of no interest with regard to the question of whether or not the city’s names rights are infringed or not, the court for the first time admitted that the use of a Top Level Domain (TLD) such as e.g. .com might be of relevance for answering the question of whether a likeliness confusion (or attribution; “Zuordnungsverwirrung“) exists. If such a likeliness of confusion exists, a registrar would be seen as infringing the name rights of the city in question.

Facts of the Case: The case concerns the domain Schladming.com which is registered for the defendant. Schladming is the name of a mid-size Austrian city, well know in Austria for skiing and, surely more importantly, for hosting the 2013 Alpine Ski World Championship.

The defendant Tiscover, runs a accommodation booking site for the region around Schladming. The domain Schladming.at is registered for the city council of Schadming. As many other Austrian cities and villages, Schladming had failed to register the name of their city on time and subsequently sued the defendant.

Name law in Austria in regard to domain law is usually applied in a very strict manner and as a rule of thumb courts will usually grant an injunction against any registrar who registered the name of an Austrian city as a domain name and thus infringes the name rights of the city (OGH, 16.12.2003 ,4 Ob 231/03d, serfaus.at).

Regarding disputes about name rights, other than disputes about e.g. TM issues, the actual content of the respective website (OGH, 24.03.2009, 17 Ob 44/08g, justizwache.at) and the actual TLD used (e.g. OGH, 20.03.2007, 17 Ob 3/07a, immoeast ...

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