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Domain seizure as a means in enforcement law

The seizure of a domain can be attractive. After all, a large part of the economic value can be realized in the domain.

According to the decision of the Federal Court of Justice of July 5, 2005 (case reference: VII ZB 5/05), a distinction must be made between the Internet domain as such – i.e. the Internet address – and the claims of the owner against the registry. Only the latter are attachable as “other property rights” within the meaning of § 857 para. 1 ZPO (“domain seizure”). This also corresponds to the case law of the Federal Fiscal Court (e.g. judgment of June 20, 2017 – VII R 27/15).

What is seized?

The object of the attachment is therefore “all claims under the law of obligations of the domain holder against the registry arising from the contractual relationship on which the domain registration is based”. The registry for so-called top-level domains ending in .de, for example, is DENIC. There is therefore a triangular relationship between the distraining creditor (= the person who “wants” the domain), the distraining debtor (= the person who “must” surrender the domain) and the registry (= DENIC, for example).

If the object of the seizure is to be all of the debtor’s claims against the registry under the law of obligations, the question then arises as to what these claims are. This is not a contractual obligation in the sense that the domain is only registered once, but a continuing obligation in which DENIC undertakes to maintain the registration so that the domain holder can continue to use the domain. This is stated in § 7 (1) of DENIC’s Domain Terms and Conditions.

The goal of a successful domain seizure

On the one hand, the seizure of a domain can result in the judgment creditor fully assuming the legal position of the judgment debtor with regard to the domain. The judgment creditor is then the new contractual partner of the registry and thus also the owner of the domain. With the transfer of the domain in lieu of payment, the judgment creditor is satisfied in relation to the judgment debtor.

In addition, the enforcement creditor can also achieve realization of the claim. This is conceivable, for example, by auction or sale.

The conditions for seizure

The requirements for attachment are set out in sections 857 para. 1, 828 ZPO. According to these, the enforcement creditor must obtain an attachment and transfer order from the enforcement court.

To do this, the attachment creditor must have filed an application and obtained a title with a clause. A title is an official document that proves a claim, e.g. a (legally binding) judgment – Section 704 ZPO – that has been issued against the enforcement debtor. Clause” is the addition to the title that enforcement from the title is permissible – Section 725 ZPO.

The awarding authority is the third-party debtor, as the attachment interferes with the debt relationship between the garnishee and the awarding authority. Since an attachment order always contains a so-called attachment order, i.e. a prohibition of performance directed at the third-party debtor, the service of the order on the third-party debtor is also a prerequisite for its effectiveness. In addition, the garnishment order always contains a prohibition of disposal (inhibitorium) directed at the garnishee.

In this context, it could be problematic that the registry – if the attachment order is worded imprecisely – is forced to immediately cease providing services to the distraining debtor. However, this would end the domain’s connection to the Internet, i.e. the accessibility of the domain. This does not correspond to the meaning and purpose of the prohibition of services, as on the one hand the claims that are the subject of the attachment would expire and on the other hand the economic value of the domain would deteriorate as a result. The so-called connectivity must therefore continue to be carried out by the registry, the prohibition of performance can only relate to other claims of the domain holder against the registry, according to the Düsseldorf tax court in such a case (Düsseldorf tax court, judgment of March 10, 2017 – 1 K 3509/14). In a judgment of the Saarland tax court (judgment of August 30, 2018 – 2 K 1282/15), the court saw a general prohibition of impairment in the fact that the connectivity must be maintained. This means that the client’s obligation remains in place, but the seizure order is still sufficiently specific. This is also in line with the case law of the Federal Fiscal Court (BFH, judgment of June 20, 2017 – VII R 27/15).

Exclusion of seizure

The general exclusions of seizure, which can be found in particular in Section 811 ZPO, apply to the seizure of a domain. In case law, with reference to Section 811 para. 1 No. 5 ZPO, the seizure of a domain has been excluded in the event that the domain is necessary for the debtor’s gainful employment. However, such an exclusion is only possible under strict conditions; in particular, the prohibition of seizure may already be excluded if it is possible for the debtor to obtain a replacement domain with little effort.

As a manifestation of the principle of proportionality, the seizure of a domain is excluded if it has no prospect of success. This is the case if it cannot be expected that the realization of the seized domain will not exceed the costs of enforcement.

Defense options against the seizure of your own domain

The usual legal remedies under enforcement law are available to the enforcement debtor, but also to the registry as third-party debtor, against the seizure of a domain. Firstly, there is the action to defend against enforcement – Section 767 para. 1 ZPO -, but a reminder pursuant to Section 766 ZPO is also possible. The latter can be asserted in particular if the manner of enforcement is incorrect.

After a domain has been seized, the judgment debtor can still oblige the new owner to refrain from using it. This is possible if the use could infringe name or trademark rights.

Domain seizure is not witchcraft

At first glance, the constellation of domain seizure appears somewhat more unusual and complicated than the “normal” seizure in enforcement law. On closer inspection, however, this is not the case. The same rules apply as for the attachment of claims. The relationship between the principal and the enforcement parties can become problematic if the rights and obligations of the principal are unclear. However, this has now been clarified by case law.

However, in particular in cases where almost the entire value of the company is realized in the domain, such as in the case of pure online stores, seizure may be ruled out.

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