Transfer
Claim for
.EU domains.
Transfer
Claim for
.EU domains.
from
Is there a transfer right for .eu domains? Or does the same apply here as for other top level domains? After the Regional Court of Stuttgart had affirmed a transfer claim, the Higher Regional Court now had to decide on this in the appeal instance.
What is it about?
A company represented by us took action against a former shareholder who was the owner of the .eu domain with the company name as a second level domain. He refused to surrender the domain, so that ADR proceedings were initially conducted. These proceedings ended with the decision that the domain should be transferred to our client.
The domain holder filed an action against this, in which he requested a declaration that he was not obliged to transfer the domain. In return, the company represented by us filed an action for transfer of the domain.
Decision by the court
Unlike the Regional Court of Stuttgart, the Higher Regional Court of Stuttgart (judgment of 28.05.2014 – 2 U 147/13) rejected a transfer claim.
The registrar of the .eu domain also knows a kind of DISPUTE entry, which is why there is no need for a transfer claim here.
The fact that the EU Directive provides for a right of transfer in ADR proceedings does not change this either. The ordinary courts are not bound by this, as this only concerns the ADR procedure.
Accordingly, the action for a declaratory judgment directed against this is always well-founded, as there is in fact no transfer claim.
As with other top level domains, there is only a claim for deletion.
Conclusion
The decision of the Stuttgart Higher Regional Court judges is not entirely unproblematic in connection with ADR proceedings. This is because if the transfer is ordered in ADR proceedings and the domain holder opposes this with an action for a declaratory judgment, the OLG is of the opinion that this must always be upheld.
According to the opinion of the court expressed at the hearing, the only option left to the person who wants the domain is to recognize the claim and simultaneously sue for deletion.
However, this can have unpleasant consequences for the rights holder, as he may have to bear the costs of the declaratory action, even if he is ultimately awarded the domain by way of deletion. It is doubtful whether an immediate acknowledgment is still possible at low cost for the rights holder after he has pursued a transfer claim for himself in the ADR proceedings.
In this respect, the Stuttgart higher regional court judges make no secret of the fact that the ADR procedure should be left alone. After this decision, clients cannot be advised otherwise.
We are happy to
advise you about
Domain right!
