On 1st January 2021, the United Kingdom officially left the European Union, by leaving the customs union and common market. This has consequences for UK residents wanting to register .FR domain names.
Below is a summary of the key points that brand owners and legal practitioners should be aware of.
As expected, UK residents are no longer eligible to register a .FR domain name, nor other country code top-level domains managed by Afnic. For example, .RE for the Reunion Island and .YT for Mayotte (French overseas departments and territories). The eligibility requirement to register a .FR domain name is to prove that you are a natural or legal person who resides in the EU, which UK residents can no longer satisfy. Therefore, from 1st January 2021, a UK resident or legal person, with a principal office or establishment located in the UK, cannot apply for the registration of a .FR domain name. However, a question remains regarding domain names acquired before the departure of the UK from the EU.
According to Afnic, the French Network Information Centre, there are about 34,000 .FR domain names owned by UK residents. Afnic has decided to apply the principle of non-retroactivity of its naming rules. It means 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 non-retroactive principle, UK residents can also renew their domain names under the same conditions as before and for as many times as they want.
Regarding the transfer of a. FR domain name to a new holder, only if the new owner resides in one of the 27 EU member states, Switzerland, Iceland, Norway and Liechtenstein, the transfer will be authorised. While Afnic decided to apply the principle of non-retroactivity, other EU Registries have taken different approaches.
Eurid, the .EU Registry, is the perfect example to show that some Registries decided to apply retroactivity at their own discretion. This means that UK residents are not eligible to hold their existing .EU domain name anymore.
During the transition period, Eurid invited all UK residents holding .EU domain names to update their details and make sure they comply with the .EU regulatory framework. To hold a .EU domain name, you must prove that you are:
Now that the transition period ended, all UK residents who are not Union citizens are no longer eligible to hold a .EU domain name. This applies to new registrations as well as existing ones. For individuals or entities no longer compliant, Eurid have suspended all domain names until 31st March 2021. After this date, if a domain holder is still in breach of the rules, the domain will go into a “withdrawn” status and become available to the general public from 1st January 2022.
The changes in .FR registration requirements also have an effect on domain arbitration and UK brand owners need to make sure 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 holder can initiate arbitration using the SYRELI procedure managed by Afnic or the PARL EXPERT administered by WIPO. The same policy and rules apply for both procedures. If a brand owner asks for the transfer of the domain at issue, it must make sure that it is eligible to hold the domain. For the transition period between 31st January 2020 and 1st January 2021, arbitrators of the SYRELI procedure answered the question of eligibility. In the decisions, FR-2019-01940 and FR-2020-01943, both involving the company Vinted Limited, arbitrators held that until the EU law ceased to apply to the UK at the end of that period, the claimant was eligible to request the transfer of the domain names.
Now this period has ended, it seems evident that a company, with a registered office or main establishment based in the UK, will be treated under the same principles as companies located outside the EU.
This means that a UK company requesting the transfer of a domain name in its claim will not be admissible unless the claimant requests the transfer to its subsidiary. It is important to note that the legal relationship between claimant and subsidiary must be proven and the claimant must own 100% of the subsidiary in question to be admissible.
The other option for claimants based outside the EU, and unable to rely on a subsidiary is simply to request the domain name's deletion.
As Brexit agreements continue to be discussed, rules relating to domain names may evolve in the coming months. Therefore, it is important for brand owners to be aware of these developments, as they affect both domain names portfolios and arbitration procedures.
Senior Legal Advisor