Oberster Gerichtshof, Urteil vom 20/03/2007 17 Ob 2/07d
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0121893
Date: 2007-03-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT0320(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a company with its seat in Austria, appeared on the internet under the domain names "palettenboerse.com" and "palettenboerse.at". When it became possible to register domain names with vowel mutations, it also registered "palettenbörse.at". The plaintiff brought an action before the Austrian court competent at its seats against the defendant, domiciled in Germany, seeking the cancellation of the domain "palettenbörse.com" registered by the latter. The plaintiff alleged that the defendant had registered it being fully aware of the plaintiff's domain and without any intent to offer an internet service. The defendant was only willing to cancel the registration in return for payment of key money. His "domain grabbing" allegedly impeded the plaintiff's business activities. The defendant did not enter an appearance. The court of first instance dismissed the action for lack of international jurisdiction of the Austrian courts. The plaintiff appealed to the OGH (AT).
The OGH (AT) allows the appeal and overrules the lower court's judgment. It holds that domain grabbing can assume different shapes. The registration of a domain with the purpose of releasing it in return for payment of key money constitutes a tort, delict or quasi-delict within the meaning of Article 5(3) Brussels I Regulation just as does the occupancy of a domain in order to block the business activities of a third party. Pursuant to the plaintiff's assertions, which have to be considered due to the defendant's default, the first configuration is on hand. The defendant himself does not use the domain "palettenbörse.com" for business purposes. It is neither recognisable that he has the intent to do so. Thus, this is a case of destructive competition. It has an impact at the plaintiff's seat which is thus, the place where the harmful event occurred, as the damage threatens to arise there. Hence, the Austrian courts at the plaintiff's seat have jurisdiction according to Article 5(3).