One of the speakers of the 3. Österreichische IT-Rechtstag (4-5.June 2009) in Vienna, Dr. Thiele, spoke abut a recent OGH decision (OGH, 24.03.2009, 17 Ob 44/08g justizwache.at) concerning the infringement of name-rights (§ 43 ABGB) through the use of identical domain names.
Whilst it used to be the case that attention was paid by the court to the content of the website and the intention of the registrar , the Austrian Supreme Court ruled, that the use of someone else’s name as a domain is basically to be seen as capitalisation of confusion/goodwill and thus an infringement of name rights, regardless of the actual content of the website. In case the interests of both parties are similar and not conflicting the registrar of the name has to ask for the consent of the other party.
Still the court pointed out that the defendant’s right to freedom of speech was not infringed as it could have chosen the domain http://www.justizwache-kritisch.at insteadt of using the name of the institution (http://www.justizwache.at) as its domian.
A good discussion of this topic in German: Sammer, Domain-Grabbing neu?, ecolex 2008, 749