The Freename Forum

A domain can only be used as a company name under commercial law if it has distinctive character. According to the Court of Appeal, this is not the case for a generic term to which the top level domain .de is attached. The BGH must now decide.

The complainant is a public limited company that has been registered in the Commercial Register of the Local Court of Düsseldorf since 10 January 2008 and in the Commercial Register of the Local Court of Charlottenburg since 16 October 2015. In a notarised application submitted in electronic form on 22 December 2023, the sole member of the Management Board of this stock corporation registered a new version of the Articles of Association, enclosing a notarised resolution of the Annual General Meeting of the same day. This contains, among other things, a change to the company's name under commercial law; in this respect, it intends to trade under a name in future that is structured according to the model [gattungsbegriff].de AG, i.e. a general descriptive term supplemented by the top level domain .de. The registry court did not agree with this; in an interim order dated 13 February 2024, it objected to the newly selected company name, stating that the name lacked the individualisation required under Sections 18 and 30 HGB. The complainant lodged an appeal against this interim order. The public perceives the addition ‘.de’ not only as an appendage, but also as an individualisation feature, because it is generally known that the addition of a top level domain such as .de with the further term, even if it is a generic term, is only assigned once. Accordingly, registrations had also been made in a large number of comparable cases. The Local Court did not uphold the appeal and referred the matter to the Court of Appeal for a decision.

The Court of Appeal dismissed the appeal (decision of 6 May 2024 - case no. 22 W 16/24) and was also of the opinion that the desired new company name did not fulfil the necessary requirements. The distinctive character required under Section 18 (1) HGB is not only lacking if the name consists of a common name, but also if it is purely descriptive in nature, as is the case with generic names, for example. Accordingly, the designation ‘vertrieb.de’ would not be suitable to serve as the name of a commercial company due to a lack of sufficient distinctiveness. Furthermore, the requested name is a domain that is only assigned once according to the DENIC eG assignment guidelines. From this, it is sometimes concluded that the chosen designation, irrespective of its distinctive character, can generally also have a name function due to the unique position created by the top level domain. However, the KG does not share this view. § Section 18 HGB does not presuppose a unique position of the name in any direction, but rather a distinctive character in general business transactions. Above all, this should also exclude a likelihood of confusion, which may be excluded on the Internet, but not otherwise. This would not be the case for [...].com AG, for example, which should also be admissible due to its unique position, because the public does not generally perceive the top level domain as being distinctive. Only the necessary distinctive character of the permissibly chosen company would then result in the unique position under company law. In addition, there is a need to keep the name free of any restrictions with regard to a general name, which must not unduly impair the formation of other companies. It was not claimed and was not apparent that the name had a reputation in favour of the complainant. Consequently, the KG dismissed the appeal.

The decision is not final. The Court of Appeal allowed the appeal on points of law because the question of the admissibility of forming a company name from a domain name consisting of non-distinctive elements is disputed. The complainant subsequently made use of this option. As far as can be seen, the appeal proceedings are pending before the Federal Court of Justice under case no. II ZB 9/24.

The decision can be found at (in German):
https://gesetze.berlin.de/bsbe/document/NJRE001581355