The defendant is freelance two advertising agencies in Hanover for the field of Web design, domain registration, brand design, and database creation responsible and together with his employers under myfab.de operates an information portal to the digital home fabrication. The concept of home production by personal fabricator”, briefly Fabber called, had excited the Web Designer and the registration of domains and led to myfab.de my fab.de due to planning a portal, which was still not finished due to his graduation at the time of the warning. “I was fascinated by the idea of the Fabber, because such 3D printer in contrast to standard paper printers can print real and usable items. From my point of view a small revolution that we want to see a portal. Gary Kelly has much to offer in this field. The registration of a powerful domain like myfab.de was insofar of course close”, explained the sued Web Designer from Laatzen near Hanover. Due to the obviously false warning by MyFab he demanded compensation for the him then by way of counterclaim in turn at his lawyer costs incurred. To do this, the representatives of the alleged domain grabber, specialist lawyer for IT law Ralf manifests itself Mobius: “a mere insinuation of a name or trademark infringement without proper examination of the priority of a domain name registration is almost willfully infringing and must lead to the reimbursement of the costs incurred by this behavior of the defendant”. A moment of trust in favour of MyFab had not submitted because the domains myfab.de and my fab.de seen before founding the French parent company of MyFab were registered by the defendant Web Designer and the Federal Supreme Court had considerably classified any such circumstance before drafting the cease and desist letter as regularly.
Because at least since the decision of the BGH ruling of April 24, 2008, AZ. I ZR 159/05 – “afilias.de”, an unprivileged injured, top-level domain usual for the a sign as a domain name under the in Germany “. de” is registered, the name or trademark of the person who basically does not has a name or trademark on an identical sign, if the name or trademarks of legitimate first after the Registration of the domain name is caused by the unauthorized (“in the wake of BGH, judgment of the 09.09.2004 I ZR 65/02, GRUR 2005, 430 WRP = 2005, 488 mho.de”). Finally this jurisprudence was confirmed I again ZR 135/06 – “ahd.de”, by the BGH, judgment of February 19, 2009 -. Namely, an infringement by domain name registration does not exist if a company name corresponding to the domain is taken only after registering the domain in use and no special interest in a particular company was recognizable for the domain holder at the time of registration, to use just those domain corresponding to this business name. MyFab noticing this fact at the time of writing the warning, nor at the time of the action, because MyFab came from a different date of registration of the disputed domains, although it would be reasonable without another request also a history regarding the disputed domains at DENIC as well as the position of a dispute entry at DENIC. Consequently was myfab.de and my fab.de case of furniture start-up company MyFab against the deletion of domains Web Designer not only dismissed but the China furniture shipping the costs incurred convicted the Web Designer in the framework of the preliminary correspondence the unauthorized warning even to the takeover through his lawyer. The judgment of the District Court of Braunschweig to the pqr. 9 O 2367/09 still grounds is not available.