Prawo Nowych Technologii
nr 1/2022
The Garnishment of Domain Names in Germany
The author is an attorney-at-law (Rechtsanwalt) and partner of Welzel Brinkop Rechtsanwälte in Frankfurt on the Main, Germany. He is the former general counsel of DENIC, the registry for the German Top Level Domain.de, and was the longtime chairman of the Legal & Regulatory Group of the Council of European National Top Level Domain Registries (CENTR).
Abstrakt
Domain names can be of significant value, as demonstrated by the lively domain name trading scene and many quite spectacular sales of domain names. Consequently, in Germany, already more than twenty years ago, creditors laid their eyes on domain names registered by their debtors as a possible asset to get hold of in order to seek satisfaction of their claims against the debtors. Today, it is well established under German law that domain names – or rather, their legal surrogate – can be subject to garnishment1. Nevertheless, important issues connected to such garnishment are still under dispute, and the jurisprudence on them is still fragmentary, inconclusive and, at times, rather unsatisfactory. This article gives an overview of the current state of affairs.
Abstract
The Garnishment of Domain Names in Germany
Under German law, domain names do not constitute an absolute right and thus are not subject to seizure/garnishment as such. Instead, the entirety of the domain name holder’s contractual claims from the domain name contract with the registry can be garnished. However, there is some dispute as to whether the registry must or can be involved in the garnishment procedure as garnishee and obliged not to impair the garnished claims in any way. Another area of controversy is whether the person that acquires the garnished claims in the course of their realization becomes the new domain name holder in the debtor’s stead. The article provides an overview as well as an assessment of the jurisprudence of the German courts on these issues. It comes to the conclusion that the registry cannot be regarded as garnishee and the domain name holdership does not transition to the acquirer of the garnished claims.Key words: domain name, domain name contract, legal nature of domain names, registry, garnishment, seizure, creditor, debtor, garnishee, garnishee declaration, order to the garnishee, realization of garnished claims, transfer of contractual claims, change of domain name holder, German Civil Procedure Code (Zivilprozessordnung), German Federal Constitutional Court (Bundesverfassungsgericht), German Federal Court of Justice (Bundesgerichtshof), German Federal Fiscal Court (Bundesfinanzhof), Amtsgericht Frankfurt am Main
