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ABSTRACT:
In this thesis I try to analyse the allocation of internet domain names with regard to two decisions of the German Federal High Court concerning the German country code Top Level Domain “.de”. This thesis shows that the court refers to economic criteria to justify its decisions in this field of the law which is barely regulated by statutory law. The questions as to whether generic terms should be allocated to private persons as domain names (the case ‘mitwohnzentrale.de’) and whether courts should transfer domain names in cases of conflicts between two rightholders in a domain name (the case ‘shell.de’) are analysed by making use of economic criteria. The economic analysis of the first question shows two efficient solutions: either owners of generic terms as domain names should be obliged to set up links to the websites of competitors or generic terms as domain names should be administered by the registrar itself providing a portal for the whole branch of the industry. The result of the second analysis is that courts should engage in a later transfer of domain names only in cases where bargaining between the parties fails due to a situation of bilateral monopoly with asymmetric information. Should the courts decide to transfer a domain name, the original owner must be entitled to receive an appropriate compensation. The thesis also refers to the legal situation in the USA and the different possibilities to initially allocate domain names. |
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