Swiss cantonal appellate courts recently decided two domain name disputes in favour of Swiss municipalities. In both cases the name of the municipalities concerned (Luzern and Frick) had been registered as domain names under the country-code top-level domain '.ch' in the name of private Swiss companies. Both municipalities filed court actions against these companies and requested that the registrations of the domain names be declared invalid.
The two cantonal courts based their decisions on different reasoning, but reached the same result.
In Luzern Municipality v H GmbH (sic! March 2002, p176 and following) the appellate court of the canton of Luzern rendered its decision by taking into account the rules of the Swiss Federal Act Against Unfair Competition. It argued as follows:
- The plaintiff (Luzern municipality) posted on its website not only official information and governmental services, but also details of apartments available for lease;
- The plaintiff was therefore engaged in competition and was thus protected under the Act Against Unfair Competition;
- The plaintiff was protected under the Act Against Unfair Competition even though the defendant was not directly competing with the plaintiff;
- The defendant's use of the domain name 'luzern.ch' to promote its own services caused confusion with the services offered by Luzern municipality, as users accessing the domain name would expect to reach the website of Luzern municipality, and not that of the defendant;
- The defendant was also unfairly exploiting the good reputation and name of Luzern; and
- The defendant was, therefore, acting unfairly and breaching the Competition Act.
In these circumstances the court decided that Luzern municipality was entitled to the domain name.
In Frick Municipality v Frick & Partner GmbH (sic! September 2001, p818 and following) the commercial court of the canton of Aargau made its decision on the basis of the Swiss Civil Code's provisions regarding the protection of names. The court had to decide whether the rights of Frick municipality prevailed over the rights of a company (owned by an individual with the surname Frick) which had registered the domain name 'frick.ch'. The court argued that the name of Frick municipality was protected under the Swiss Civil Code, while the defendant had a purely financial interest in the domain name, as it was not using the domain name itself but was making it available to Mr Frick. Had Frick registered the domain name in his own name the court might have decided otherwise, but on the basis of the given facts of the case the court ordered that Frick municipality was entitled to the domain name.
For further information on this topic please contact András Gurovits at Niederer Kraft & Frey by telephone (+41 1 217 1000) or by fax (+41 1 217 1400) or by email ([email protected]).