Same Weather in Germany and Austria: wetter.de vs wetter.at
On 28 January 2016, the German Supreme Court (Bundesgerichtshof, “BGH”) decided a dispute between “wetter.de” [= “weather.de”], a domain- and App-name, and the owner of wetter.at [= “weather.at”] who equally launched an App called “wetter-de”, “wetter DE” and “wetter-DE” (BGH, 28 January 2016, I ZR 202/14). As both parties offered weather information (inlcuding weather information on Germany) under these names, the BGH held “wetter.de” to be descriptive and thus not protectable.
This does not come as a surprise. However, it is interesting that the Austrian Supreme Court (Oberster Gerichtshof, “OGH”) already dealt with almost the same “weather conditions” in 2011 already: in this previous case, however, it was wetter.at who filed an injunction suit against its competitor weather.tv (OGH, 17 Ob 22/11a – wetter.tv). Back then, the OGH came to the same conclusions as the BGH did now.
As the Austrian Plaintiff, however, also tried to rely on “wetter.at”‘s secondary meaning, the OGH was prompted to also deal with the required threshold of proof in the context of Internet domains. In particular, the OGH held that the number of hits alone cannot be a relevant criterion. Rather, it is crucial toalso determine how the users came to that website: If they enter the URL directly into their browsers, such accesses may be relevant. If they land on the website via a search engine (e.g. because they searched for “weather” or “weather Austria” and then click on the link of a respective search result), such accesses must be neglected right from the start (to that effect, see item 3. of the OGH decision linked to above).
In order not to be left out in the rain when relying on a domain name’s secondary meaning, it is thus advisable to also log the so-called “referral headers” as they show from which URL the user came to the website in question. Furthermore, if that starting point was a search engine, the referral header also shows the search words used. In case of direct input of the URL into the browser’s address line, no referral header is transmitted. Hence, when having to establish a domain name’s secondary meaning, only such server logs may be considered, which also log the user’s way of accessing the website (see also Schnider/Feiler, ÖBl 2012, 119 – wetter.tv).
In general, however, relying solely on the number of hits is not advisable. In most cases, an expert opinion, such as a survey amongst the target audience in particular, will remain essential.