Supreme Court Grants Injunction in Domain Name Dispute

As in the Bundesheer Case (reported in Controversial Rulings on Domain Names), Supreme Court Decision (1) of March 22 2001 deals with a domain name that includes the name of an official body.

The defendant (a private individual) registered the name 'rechnungshof' under the .com, .net and .org domains. He offered inside information on the Public Audit Office, which is the competent authority to examine and administer public funds. The plaintiff, the Federal Republic of Austria, owns the domains rechnungshof.at and rechnungshof.gv.at, and asserted that the defendant had (i) violated its right to bear a name and (ii) caused confusion among those accessing the homepage, since the term 'rechnungshof' is restricted to the Public Audit Office.

The Supreme Court granted the application for a preliminary injunction and contrasted the facts of the case with Bundesheer as follows:

• Unlike the fake homepage bundesheer.at, rechnungshof.com does not contain a reference to the official homepage of the Public Audit Office nor any indication that it is unofficial. On the contrary, the homepage promises inside information, creating the impression that a public official will disclose confidential information;

• The damage warranting the preliminary injunction is not the fact that the official site of the Public Audit Office cannot easily be detected; a reasonably intelligent internet user will not look for an official Austrian site under a .com domain that is registered abroad. Rather, damage to reputation and image is likely to occur because of the impression that confidential information might be disclosed to the public; and

• The term 'rechnungshof' is protected under Section 43 of the General Civil Code, as it is the name given to the Public Audit Office by the Constitution. Thus, its use as part of a domain name could be a violation of Austrian law regardless of whether the domain has been registered in Austria or abroad (eg, .com or .net), since access to the web site can be gained from anywhere.

For further information on this topic please contact Dieter Hauck or Barbara Kurz at Preslmayr & Partners by telephone (+431 533 16 95) or by fax (+431 535 56 86) or by e-mail ([email protected] or [email protected]).

Endnotes

(1) 4 Ob 39/01s.