In the digital economy, domain names are more than just internet addresses—they are virtual real estate, trademarks in disguise, and often a company’s first point of contact with the outside world. As such, their legal status in Germany is complex, balancing principles of property law, trademark protection, competition law, and contractual governance by private registrars like DENIC.
For international businesses, navigating Germany’s domain law means understanding a landscape where ownership is shaped by civil law reasoning, yet constrained by fairness, good faith, and public policy considerations. This post offers a detailed overview of how domain law operates in Germany—and where the legal traps lie.
Domains Are Not Property—But Close Enough
German courts do not treat domain names as tangible property. Instead, domains are classified as contractual rights arising from the registration agreement with a registrar (typically DENIC for .de domains). However, they are economically treated like assets: transferable, sellable, and—crucially—attachable in enforcement proceedings. This hybrid status explains why domain disputes are adjudicated under civil obligations law but often refer to analogies with ownership.
This distinction becomes important in insolvency cases. German courts have ruled that a domain name can form part of the debtor’s estate and be sold by the insolvency administrator—even if it merely redirects to another website. As such, companies should treat domains like any other intangible asset in terms of bookkeeping, M&A due diligence, and risk management.
First Come, First Served—But Not Without Limits
DENIC operates under a principle of technical neutrality and non-intervention. It allocates .de domains on a first-come, first-served basis without pre-screening for trademark conflicts or bad faith. This model offers efficiency but creates legal grey zones—especially when registrants act preemptively or strategically.
A recurring legal scenario involves domain grabbing, where a party registers a domain solely to block a competitor or demand payment. German courts address such cases through general tort law (§ 826 BGB – intentional infliction of harm in bad faith) and the doctrine of abuse of rights (Rechtsmissbrauch, § 242 BGB). In these cases, the mere act of registration, without legitimate use or intent to use, can lead to liability and transfer obligations.
Courts consider a number of factors: the registrant’s portfolio size, naming patterns, prior knowledge of the target brand, and lack of intent to build content. A pattern of speculative registration targeting third-party rights is often sufficient to establish bad faith.
Collision with Trademarks and Company Names
German domain law becomes particularly thorny when a domain conflicts with an existing trademark or business identifier. Unlike systems that allow for centralized domain challenges (e.g., UDRP), Germany requires judicial enforcement—typically via injunction or civil action.
Key issues include:
- Whether the domain is identical or confusingly similar to a protected mark or trade name.
- Whether the domain is being used commercially or held passively.
- Whether the domain holder has legitimate interests, such as personal names, generic terms, or geographical identifiers.
For example, the courts generally tolerate generic-word domains even if a trademark exists, provided the domain is used descriptively and not deceptively. However, combining such words with product categories or operating sectors can quickly cross into infringement.
The legal reasoning here is based on the collision of two protected interests: the freedom to operate online versus exclusive rights under the Trademark Act (MarkenG) and the German Commercial Code (HGB). The courts resolve this via proportionality and balancing tests—highly fact-specific and often unpredictable.
The Role and Limits of DENIC
DENIC is a non-governmental, cooperative association that manages the .de namespace. Its registration policies are contractually binding but not statutory law. German courts have consistently ruled that DENIC is not a judicial body and is under no duty to screen registrations for legality.
However, there are exceptions. In certain cases involving clear rights violations, such as when domains are transferred in breach of court orders or as part of fraudulent schemes, DENIC may be compelled to intervene—either to block a transfer or to disclose registration data (within the bounds of GDPR compliance).
Notably, the OLG Frankfurt confirmed that DENIC is not obligated to reserve or grant domains consisting of only two characters unless technical feasibility and procedural clarity are established.
Legal Remedies and Procedural Pathways
Disputes over domains typically play out in the civil courts through:
- Preliminary injunctions (especially where brand erosion or phishing is feared),
- Declaratory judgments of rights infringement,
- Claims for transfer based on § 12 BGB (name rights) or § 826 BGB (malicious intent).
The courts are generally swift and brand-friendly in urgent cases but expect thorough documentation—such as registration timelines, trademark certificates, and evidence of public confusion.
Arbitration-like procedures akin to UDRP are not available for .de domains, though voluntary mediation or settlement before litigation is encouraged.
Strategic Takeaways
For corporate management, domains must be treated as part of brand architecture and IP strategy. Defensive registration (e.g., common typos, industry suffixes), monitoring of new domain registrations, and contractual clarity with marketing and IT vendors are essential.
Equally critical is the internal audit of domain holdings, especially where private individuals or employees register domains on behalf of a company. If the legal ownership is not clearly assigned, it can result in costly disputes or even loss of critical digital assets.
Conclusion
Domain law in Germany is a subtle interplay of contract, tort, trademark, and civil doctrine. It lacks the procedural simplicity of UDRP systems and the centralized enforcement seen in some other jurisdictions. But it offers robust protection—especially for those who act early, document properly, and litigate strategically.
For international businesses operating in Germany, understanding the legal character of a domain name is not optional. It is a cornerstone of digital identity—and increasingly, of legal risk management.
Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
- Liability of Companies in Phishing and CEO Fraud Incidents - 13. May 2025
- Domain Law in Germany - 10. May 2025
- Art Law in Germany - 10. May 2025