Information Note on the Court’s case-law No. 100
August-September 2007
Paeffgen GmbH v. Germany - 25379/04
Decision 18.9.2007 [Section V]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Possessions
Court orders prohibiting the use and requiring the cancellation of domain names that infringed third-party rights: inadmissible
The applicant company was engaged in e-commerce and acquired several thousand Internet domain names from the registration authority for a fee. Under the terms of the domain contracts, the names were sold without any warranty that their registration and use did not infringe third-party rights. Subsequently, various sets of proceedings were brought against the applicant company by third parties who alleged that the registration and use of certain domains infringed their intellectual-property rights. These led to court orders prohibiting the applicant company from using or disposing of the relevant domains and requiring it to apply for their cancellation. The orders were upheld on appeal. The applicant company complained that the absolute prohibition on its using the domain names had disproportionately interfered with its rights of property as a more limited order requiring it to refrain from specific infringements would have sufficed.
Inadmissible: The contracts with the registration authority gave the applicant company an open-ended right to use or transfer the domains registered in its name. The exclusive right to use the domains had an economic value and therefore constituted a “possession”. The prohibition on using or disposing of the domains clearly served to control the use of its property. The orders requiring the applicant company to apply for the cancellation of the domains served to prevent it from continuing to violate third-party rights. Since the “possessions” were mere contractual rights to the exclusive use of the domain names and the contracts expressly stated that the domain holder was responsible for verifying whether third-party rights were liable to be infringed, these orders also constituted measures of control of the use of property. The measures taken were in accordance with domestic law and served to further the legitimate general interest of maintaining a functioning system of protection for trademarks and/or names. While it was true that the domestic courts had found it necessary to place an absolute prohibition on the use of the domains concerned, the applicant company had failed to demonstrate more limited ways of using them which would not have risked interfering with the rights of others and had been clearly notified that registration did not imply freedom from third-party claims. Accordingly, the orders could not be considered excessive, especially as the applicant company had hardly used the domains. The orders had thus struck a fair balance between the protection of the applicant company’s possessions and the requirements of the general interest and the applicant company had not had to bear an individual and excessive burden: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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