Safenames Ltd - Domain name policing and enforcement
On 1 January 2021 the United Kingdom officially left the European Union, the Customs Union and the Common Market. This has had major consequences for UK residents looking to register ‘.fr’ domain names.
Registration of ‘.fr’ domain names
UK residents are no longer eligible to register ‘.fr’ domain names or other ccTLDs that the French Network Information Centre (Afnic) manages, including ‘.re’ for the Reunion Island and ‘.yt’ for Mayotte (French overseas departments and territories). To be eligible to register a ‘.fr’ domain name, the applicant must prove that it is a natural or legal person that resides in the European Union – a requirement that UK residents can no longer satisfy. Therefore, from 1 January 2021, UK residents or legal persons with a principal office or establishment in the United Kingdom cannot apply to register ‘.fr’ domain names. However, the rules surrounding domain names acquired before the United Kingdom’s departure from the European Union are still to be clarified.
What happens to domain names registered before 1 January 2021 by UK residents?
According to Afnic, there are roughly 34,000 ‘.fr’ domain names owned by UK residents. Afnic has decided to apply the principle of non-retroactivity to its naming rules, meaning that UK residents can keep their domain names without updating their address, as they fulfilled the eligibility requirements at the time of registration. In light of this, UK residents can also renew their domain names under the same conditions as before and as many times as they wish.
The transfer of a ‘.fr’ domain name to a new owner will only be authorised if the new owner resides in one of the 27 EU member states, Switzerland, Iceland, Norway or Liechtenstein.
While Afnic has decided to apply the principle of non-retroactivity, other EU registries have taken different approaches.
Comparison with ‘.eu’ – retroactive rules
The EU Registry (Eurid) has decided to apply retroactivity at its own discretion. This means that UK residents are no longer eligible to own their existing ‘.eu’ domain names.
During the transition period, Eurid invited all UK residents with ‘.eu’ domain names to update their details and ensure that they comply with the ‘.eu’ regulatory framework. To own a ‘.eu’ domain name, applicants must prove that they are:
- an EU citizen, independently of their place of residence;
- a natural person who is not an EU citizen but who is a resident of a member state;
- an undertaking that is established in the European Union; or
- an organisation that is established in the European Union, without prejudice to the application of national law.
Now that the transition period has ended, all UK residents that are not EU citizens are no longer eligible to own a ‘.eu’ domain name. This applies to new registrations as well as existing ones. For entities that are no longer compliant, Eurid has suspended all domain names until 31 March 2021. If the domain owner is still in breach of the rules after this date, the domain will assume a withdrawn status and become available to the general public from 1 January 2022.
Impact on domain dispute resolution
The changes to ‘.fr’ registration requirements will have an effect on domain arbitration and UK brand owners must ensure that they are eligible before launching a ‘.fr’ claim.
Eligibility criteria must be met when initiating a domain dispute to recover a ‘.fr’ domain name. A trademark owner can initiate arbitration using Afnic’s Syreli procedure or WIPO’s PARL EXPERT – the same policy and rules apply for both. If a brand owner requests the transfer of the domain at issue, it must ensure that it is eligible to own the domain. Arbitrators of the Syreli procedure previously answered the question of eligibility during the transition period between 31 January 2020 and 1 January 2021. In Decisions FR-2019-01940 and FR-2020-01943, both of which involved the company Vinted Limited, arbitrators held that until EU law ceased to apply to the United Kingdom at the end of the transition period, the claimant was eligible to request the transfer of the domain names.
Now that this period has ended, it seems that companies with registered offices or main establishments based in the United Kingdom will be treated under the same principles as those located outside the European Union.
This means that a UK company’s request for the transfer of a domain name in its claim will not be admissible unless the claimant requests the transfer to a subsidiary. Here, the legal relationship between the claimant and the subsidiary must be proven and the claimant must own 100% of the subsidiary in question for the request to be admissible.
Another option for claimants based outside the European Union and unable to rely on a subsidiary is simply to request the domain name's deletion.
As Brexit agreements are still under discussion, the rules relating to domain names may evolve in the coming months. It is therefore vital that brand owners are aware of these developments as they affect both domain name portfolios and arbitration proceedings.