The Münster Tax Court has ruled that, in principle, an Internet domain can be seized by the competent tax office. DENIC had filed a complaint against the attachment because, in its opinion, such attachments would entail special expenses that it could not be expected to bear. According to the Board, a domain is other property rights within the meaning of § 321 para. 1 AO and would therefore in principle be subject to attachment under public law.
This at least goes hand in hand with previous case law, since a domain is considered an independent intangible asset according to the established case law of the German Federal Fiscal Court. The acquisition costs for this must therefore be capitalized. The domain is to be reported as a separate asset. It is also not to be capitalized along with the cost of creating the website.
The Senate first assumes, in line with the basic decision of the Federal Court of Justice of July 5, 2005, that the object of a permissible attachment pursuant to Section 857 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) is the attachment of a debtor’s property. 1 ZPO, which corresponds to the provision of § 321 AO, in a domain is the totality of the claims under the law of obligations to which the holder of the domain is entitled against the registry from the contractual relationship underlying the domain registration. The attachment therefore relates to the enforcement of claims to which the judgment debtor is entitled under the domain name agreement concluded with the plaintiff.
The claims under the law of obligations which the owner of an Internet domain has against KL. or another awarding authority constitute a property right within the meaning of Section 857 (1) of the German Civil Code. 1 ZPO (cf. LG Mönchengladbach, Rpfleger 2005, 38; AG Langenfeld, CR 2001, 477; Welzel, MMR 2001, 131, 132; Berger, Rpfleger 2002, 181, 182 f; Hanloser, CR 2001, 456, 458; Musielak/Becker, ZPO, 4th ed., § 857 Rdn. 13 a; Stein/Jonas-Brehm, ZPO, 22nd ed., § 857 Rdn. 80).
An Internet domain as such is not an “other property right” within the meaning of Sec. 857 para. 1 ZPO. The domain does not have an exclusive status comparable to that of a patent, trademark or copyright. These rights are characterized by the fact that they grant their holder an absolute right, which has been established by the legislator and cannot be created by party agreement. An Internet domain is just a technical address on the Internet. The exclusive position based on the fact that from KL. an Internet domain is assigned only once is solely due to technical reasons. Such purely factual exclusivity does not constitute an absolute right within the meaning of Section 857 (1). 1 ZPO (cf. BVerfG, decision of November 24, 2004 – 1 BvR 1306/02, NJW 2005, 589; BGH, decision of November 22, 2001 – I ZR 138/99, BGHZ 149, 191, 205; Kleespies, GRUR 2002, 764, 766; Berger, Rpfleger 2002, 181, 182; also: Koos, MMR 2004, 359, 360 f.; Fezer, Markenrecht, 3rd ed., § 3 MarkenG, Rdn. 301).
Ownership of an “Internet domain” is therefore based on the entirety of the claims under the law of obligations to which the domain holder is entitled vis-à-vis the registry under the registration agreement (see also BVerfG, Order of November 24, 2004 – 1 BvR 1306/02, NJW 2005, 589). These claims – and not the “Internet domain” itself – are the subject of the attachment pursuant to Sec. 857 para. 1 ZPO.
Due to the fundamental importance, the court allowed an appeal to the Federal Fiscal Court.
