November 16, 2004

The use of a ccTLD can be unlawful!

This is a *very* interesting German decision (Hanseatisches Oberlandesgericht, Urteil vom 16.06.04, 5 U 162/03), about the use of a ccTLD in electronic commerce. A ccTLD can be misleading, according to the Higher Regional Court of Hamburg (June 16, 2004).
This court decided that the ccTLD of Barbados and Antigua, .ag, can only be used by German incorporations (Aktiengesellschaften) as "AG" is the commonly used abbreviation for such companies.
The court ruled that the use of an .ag domain by a German limited liability company (GmbH), that offers gambling games, grants the user of the domain an unjustified competitive advantage and violates the German Act Against Unfair Competition.
Unfortunately, I don't read German, and I don't know on which legal basis this decision relies (in what was the use of these initials contrary to the fairness?). But of course, this decision can only have effect in Germany: Why would a non-German firm be penalized by a German court if it uses the .ag?

[Thanks Benoît]

2 comments:

Anonymous said...

I don't know german either but .ag means antigua and barbuda, not Aktiengesellschaft (Joint-stock company).

Moreover, it can mean just about anything the owner want it to mean... and the only way I have to interpret such sentence is that the owner constructed the name and the website's content as to led its customers to believe he meant to use it as "Aktiengesellschaft".

After all many registrar do not authorize registration of domain names containing the words: "bank, trust, etc." without the proper authorizations.

Short, do not register an online casino in Germany: use the Isle of Man, the Comoros Is, HK, etc... ;)

cedric manara said...

Of course, .ag first means Antigua-and-Barbuda. But I assume that, it could also mean "Aktiengesellschaft" to the German court.
Therefore I also think that the use of this acronym, with other facts, was misleading.
Sometimes, a firm must choose a certain type of incorporation to do commerce (bank, real estate). Maybe this was the reason that the use of ".ag" was so problematic here.