For “.de” TLDs (top-level- domains) the DENIC guidelines stipulate a designation of a domestic resident person as “Admin-C”. However, if a proprietor of an infringing domain is seated abroad a question often arises as to the extent to which such a domestic Admin-C can be held liable. If an Admin-C were to be liable, then a service of complaint and enforcement abroad could be unnecessary, which in turn would greatly simplify the law enforcement.

In the “Basler Haar-Kosmetik” judgment the Federal Court of Justice (BGH) only expressed its opinion on the question of the liability of Admin-C (judgement of 09/11/2011 – I ZR 150/09), according to which, no such liability arises from the position of Admin-C alone. However, the Federal Court of Justice addressed a number of situations, in which Admin-C can still be held liable. Consequently, a liability as an accomplice would come into consideration if both the domain proprietor and the Admin-C are aware of the illegality of domain reservation. Furthermore, even without the knowledge of illegality, a significant self-interest of an Admin-C in such reservation can lead to liability, for example, if the Admin-C is paid for his activities or he is the actual user of the domain involving a foreign domain proprietor only for litigation obstruction purposes.

It was claimed in the given dispute that the UK-based domain proprietor constantly reserved vacant domains for resale purposes using an automated procedure (so-called “Domain-grabbing”), whereas the defendant presented himself as Admin-C as per a blank letter of authorization, that is  without anyone checking whether the rights of third parties could have been violated with respect to those domains. From the “risk-aggravating behaviour” point of view the Federal Court of Justice held that it is possible that such behaviour can also justify liability of Admin-C and referred the case for further examination back to the Court of Appeals of Stuttgart (OLG Stuttgart).

In another case the Federal Court of Justice addressed the legal nature of domains as such (BGH, judgment of 18/01/2012 – I ZR 187/10 – gewinn.de). In that case the former proprietor of the domain demanded to be entered in WHOIS database of DENIC in place of another party. He argued that he was previously expelled from there against his will. The Federal Court of Justice denied that claim to the extent the claim was based on the domain contract with DENIC conveying an ownership-like position (§ 823 BGB). So a domain does not impart an absolute right like property as defined in the German Civil Code (BGB) or intellectual property rights. However, the Federal Court of Justice considered reclaiming of domains based on the unjust enrichment law to be possible (§ 812 BGB) and remanded the case for further examination back to the Court of Appeals of Brandenburg (OLG Brandenburg), which had fully denied all claims. In future cases, due to such a differentiation of the legal nature of claims given by the Federal Court of Justice it will have to be considered on a case-by-case basis how a proprietor came into a possession of a domain. Consequently, trading with domains will be less prone to liability as it would have been if liability claims were to be decided on the basis of the absolute rights.