Domain Name Transfer before Slovak and Czech Courts

• Author: Martin Husovec
• Position: European Information Society Institute (EISi)
• Pages: 148-152

2012

Martin Husovec

148

2

Abstract: In Europe, a disagreement persists

in the courts about the possibility of plaintiffs to re-

quest a domain name transfer in domain name dis-

putes. In the last ten years, Slovak and Czech courts

also produced some jurisprudence on this issue. In-

terestingly, the BGH’s influential opinion in the shell.

de decision, which denied domain name transfer as

an available remedy under German law back in 2002,

wasn’t initially followed. To the contrary, several Slo-

vak and Czech decisions of lower courts allowed a do-

main name transfer using two different legal bases.

This seemingly settled case law was rejected a few

months ago by the globtour.cz decision of the Czech

Supreme Court, which refused domain name trans-

fers for the time being.

Domain Name Transfer before

Slovak and Czech Courts

by Martin Husovec, Berlin,

European Information Society Institute (EISi)

© 2012 Martin Husovec

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Mar tin Husovec, Domain Name Transfer before Slovak and C zech Courts , 3 (2012) JIPITEC 148, para.

1.

Keywords: Trademarks, Domain names, Domain transfer, Slovakia, Czech Republic, Case law, Remedies

A. General introduction

1 Domain name transfer is a quick remedy stipulated

in various narrowly tailored Alternative Dispute Res-

olution systems, such as WIPO’s well-known UDRP or

the European Union’s ADR for .eu domain names.1 It

became popular following the success of the UDRP-

-

tiffs soon also started to demand this remedy be-

fore the ordinary courts. Various European courts

responded to this demand differently. While the

courts in the UK, Belgium, Denmark, Finland, France,

Ireland, Italy, Latvia, Netherlands, Portugal, Swe-

den and Spain were reported to allow domain name

transfers, courts in Germany, Switzerland, Austria

and Hungary resisted granting it.

2

The most well-

known decision rejecting domain name transfer is

perhaps the decision of the German Federal Supreme

Court (Bundesgerichstshof, BGH) in the shell.de case.3

2

Because most European countries have no tailor-

made legislation dealing with domain name disputes,

the possibility of domain name transfers in a lot of

countries depends on whether it can be seen as a

part of currently available ex delicto remedies (claims

based on torts). Therefore, the discussions in most

of the countries usually try to answer whether the

domain name transfer

i) could be seen as a part of the claim for removal

(Beseitigungsanspruch) or the claim for cease and de-

sist (Unterlassungsanspruch); or

ii) could be constructed by analogy from some exis-

ting parts of the legislation that stipulates some kind

of a claim for transfer (Übertragungsanspruch).4

3

-

erature and jurisprudence quite soon rejected that

the claims for removal and for cease and desist could

serve as a legal basis for domain name transfers.5

On the other hand, the UK jurisdiction quickly ac-

cepted transfer as a part of the claim for cease and

desist.6 In 2002, the German BGH also rejected any

construction of the domain name transfer by anal-

ogy in its shell.de decision.7 Slovak and Czech courts,

-

itially took a different route.