Facts
The reisen.ch AG, Bern (appellant), is the owner of the domain names "wellnessfuehrer.ch" and "wellness-fuehrer.ch". SWITCH (respondent), the entity responsible for the registration of domain names under the top-level domain (TLD) ".ch", intended to allow the registration of domain names containing characters outside the ASCII character set (so-called Internationalized Domain Names, IDN) as of March 1, 2004. The appellant requested the postponement of the deadline and the allocation of the domain names "wellnessführer.ch" and "wellness-führer.ch". The Federal Office of Communications (BAKOM) dismissed the complaint, as the respondent had no competence to issue decisions and the allocation of domain names was governed by private law. The appellant then filed a complaint with the Federal Appeals Commission for Infrastructure and Environment (REKO INUM), which did not enter into the complaint, as there was no subject matter that could be regulated by a decision.Considerations
The Federal Supreme Court dismisses the complaint. The Telecommunications Act (FMG) regulates the addressing elements, their administration and allocation in Articles 28 to 30. Pursuant to Article 28 paragraph 2 FMG, the Federal Office can transfer the administration and allocation of certain addressing elements to third parties, with the Federal Council regulating the details.
The provisions of the Ordinance on Addressing Elements in Telecommunications (AEFV) show that the relationship between the registry operator SWITCH and the users is governed by private…