Dreyfus

On June 10 2013, the Council of State nullified the former judicial structure for domain names in .fr.

Four documents foundational to the policy of French domain name attribution have been annulled: legislation for alternative procedure in litigation resolution, known as “PREDEC” ruling; naming regulations for .fr from 2009-2011, as well as both the 2009 Order and Convention designating the Registration Office for .fr.

This important decision follows one made by the Constitutional Council (1) repealing article L45 of the Code of electronic posts and communications, judged to be in breach of Constitution. The aforementioned article has no longer been in force since July 1st 2011, but since the European Commission had never been notified, the Council of State decided to nullify.

The current judicial framework is not affected by this decision, but the AFNIC (2) “is soon to examine the medium-term consequences” and “intends to continue on a daily basis to fulfill its mandate at the service of French internet users, title holders and registration offices for .fr, in accordance with its mission and, henceforward, the demands of ongoing service to the public.”

The AFNIC, which is the register for domain names in .fr (France), .re (the Reunion Islands), .yt (Mayotte), .wf (Wallis and Futuna), .tf (Southern and Antarctic territories), and .pm (Saint-Pierre et Miquelon) is currently subject to a new domain name charter which took effect on March 15 2013.

(1) http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010-45-qpc/decision-n-2010-45-qpc-du-06-octobre-2010.49663.html
(2) French Association for cooperation with Internet domain names

Since June 11, 2013, the Luxemburg domain name registry (DNS-LU) allows claimants to request to “freeze” a given domain name.

The “Dispute entry” is a procedure by which the disputed domain name cannot be traded to someone else for an initial period of 1 year. The freezing period can be extended for an additional period of 6 months, provided the claimant submits a formal request for this purpose. This freezing period must allow to resolve the dispute between the claimant and the domain name holder.

How to obtain a domain name freezing order?

• Claimant must provide sufficient evidence that he has rights on the said domain name and/or that its rights have been infringed. The request must be accompanied by documentation proving the claimant’s rights.
• Claimant must have initiated formal measures against the present domain name holder. More specifically a Dispute request form has to be submitted to DNS-LU.

If the dispute is solved, the claimant must submit a formal trade request to the registrar of his choice. The trade request will be checked and validated by DNS-LU subject to the reception of documents proving the resolution of the dispute in favor of the claimant.

In case of a domain name cancelation during the dispute period and no dispute resolution having taken place, the domain becomes available again for any interested party, without the claimant having a preferential registration right on the domain name.

The introduction of this procedure breaks with the registry’s traditional position. Indeed, DNS-LU is not a legal authority to be involved in disputes or claims associated with domain names and is not involved in such disputes in any way, either in favor of the claimant or in favor of the domain holder. Since the introduction of this procedure, DNS-LU, as registry may, however, assist any claimant who feels that his rights have been infringed by a domain by filing a formal Dispute entry.

In case of conflict with a .lu domain name you may contact us and we will guide you through the procedure!

On May 13 2013 Pierre Lescure submitted his report to the French Minister for Culture and Communication entitled “Act II of the cultural exception” regarding “digital content and cultural policy in the digital era.”

The report contains 80 proposals for adapting the cultural economy to the digital era. In particular it recommends the removal of the HADOPI (French Authority for the diffusion of creative work and the protection of owners’ rights on the Internet), conferring its repressive missions to the Conseil Supérieur de l’Audiovisuel (CSA), and recommends maintaining the Graduated Response whilst modifying the types of sanctions imposed.

The regime introduced by the HADOPI law (1)

To recap, the HADOPI legislation introduced a mechanism for a graduated response to combat illegal exchanges of creative works protected by copyright or associated law.

The graduated response mechanism involves sending a warning message to any internet site owners who fails in their duty to monitor appropriate internet access. In the case of a repeat offense, the second stage consists of sending a warning by e-mail, in addition to a letter sent by recorded delivery. In the event of further breaches, sites owners are notified that they risk legal action. In such cases, the maximum sanction applicable is a fine of €1,500 for an individual. The judge can also impose an additional penalty by banning access to the Internet for a maximum period of one month.

The regime advocated by the Lescure Report

The Lescure Report recommends transferring responsibility from HADOPI to CSA whilst maintaining the Graduated Response mechanism.
As regards sanctions, the Report recommends abandoning the measures for temporary Internet suspension and also proposes replacing the fine imposed by an ordinary court by a relatively small administrative fine of €60.

Opposition to the Lescure Report

The Report has met with a variety of objections. On the one hand, the project is highly likely to meet with parliamentary opposition since certain Socialist mp’s, especially Patrick Bloche, vehemently oppose it.

On the other hand, proposals included in the Report are in danger of being blocked by the Constitutional Council. Previously, the possibility of an administrative fine had already been raised during debates on the HADOPI law in 2009, but abandoned in favor of a court fine. The Constitutional Council had opined that the Graduated Response system could only be applied by the judiciary, which led to the system currently in place. In particular, the Council was of the opinion that there could be no removal of Internet access without a judge’s decision. Since the Lescure Report advocates abandoning the measures for temporary Internet suspension, it would no longer be necessary to go before a judge and the graduated response could be ratified by an administrative fine. However, there is no guarantee that the Council will rule that conferring sanctions to an administrative authority is constitutional.

In addition, the CSA has openly stated that they do not wish to impose fines themselves, preferring to leave that to the judges. Olivier Schrameck, president of the CSA, made the following statement to the Association of Journalists (AJM): “I will not turn up wearing a kepi. And I am not asking for the right to apply sanctions. Absolutely not.”

To be followed…

                                                                              
(1) Law no 2009-669 of June 12 2009 promoting the distribution and the protection of original works on Internet.

Restricted only to companies until now, Employ Media intend to liberalize the “.jobs” in a very near future.

For the first time, an actual live TLD will have its conditions for registration changed from a restricted status to a public one. This evolution is very important as any natural or legal person will be allowed to register a domain name in “.jobs”.

Before the opening of this “General Availability” period, Employ Media plans to offer, as for the new gTLDs, a “Sunrise period” in order to allow trademarks owners who have registered their trademarks in the Trade Mark Clearinghouse Database (TMCH) to register corresponding domains.

ICANN has welcomed this initiative with great enthusiasm. Indeed, this unprecedented approach will be a real challenge for the TMCH which will be able to trial the efficiency of its process set up for New gTLDs.

There is still no date scheduled for the launch of the Sunrise Period. Employ Media has not specified if the trademarks owners who have not registered their trademarks in the TMCH will be allowed to benefit from this Sunrise Period either. Nonetheless, the TMCH is already the center of all attention.

The last ICANN (1) meeting took place during the week of July 13. 59 GAC Members and 4 Observers met in Durban, South Africa to take stock of the new gTLDs, discuss the evolution of the whois and the relations between ICANN and governments.

The GAC, which is the Governmental Advisory Committee of the ICANN, has just published its Communiqué (2) to make recommendations to the ICANN Board on some specific disputed applications:

• The GAC officially objects to .amazon (also in Chinese and Japanese) and to .thai because of the potentials conflicts due to their geographical meaning.
• The GAC advises the ICANN Board not to proceed beyond initial evaluation until the agreements between the relevant parties are reached for the applications for .spa, .yun, .guangzhou and .shenzhen.
• The GAC allows the two strings .vin and .wine and, due to the complexity of the matter, to take 30 additional days to conclude on the matter.
• The GAC does not object to the .date and to the .persiangolf while some though that those strings would be problematic.

Then, the GAC reaffirms its previous advice from the Toronto and Beijing meetings that Inter-Governmental Organizations acronyms warrant special protection by ICANN. The same applies for Red Cross and Red Crescent Committees and Federations acronyms’ protection. A discussion between members of the GAC and NGPC (New gTLD Program Committee) and Inter-Governmental Organizations representatives is under way to find an adequate protection to these acronyms.

Finally, the GAC reiterates its advice to promote Community applications.

The next meeting of the GAC will happen during the 48th ICANN meeting in Buenos Aires, Argentina.

                                                     
(1) Internet Corporation for Assigned Names and Numbers
(2) http://durban47.icann.org/meetings/durban2013/presentation-gac-communique-18jul13-en.pdf

The liberalization of the domain name sphere will be accompanied by major changes regarding the registration of domains.

After acrimonious negotiations between the different protagonists, the “final proposition” for a new accreditation contract between ICANN and registry operators was opened for public consultation from April 22 to May 13. It will be compulsory for new extensions to be administrated by this proposed contractual Agreement. As for existing extensions established under previous RAA versions (2001 and 2009), the application of “RAA 2013” changes in their case is under negotiation.

As a result, to register a domain name, companies will have to modify certain behaviors:

• The accuracy of data will be monitored 

The domains registered can be suspended or terminated if the e-mail address or telephone number has not been confirmed with the registrar within 15 days. This rule will also apply to registrants of existing domain names who modify previous data;

• Contact information must be kept up-to-date

The registrar must be notified of any change in contact information within 7 days. The failure to reply to a request from the registrar for up-to-date information within 15 days can lead to the domain name(s) being suspended or terminated.

• Data will be preserved

After the deletion of a domain name or its transfer to a different registrar, the data will be retained for 2 years by the former registrar. However, this provision may need to be adjusted if it infringes national laws relating to the protection of personal data.

• Rules will now apply – at last – to proxy or privacy services

Until now, no rules governed these privacy services. From now on, where a proxy registration is concerned, the registrars will be required to forward a copy of the operator’s data to a fiduciary agent. This preserved data may only be accessed in the event of the possible bankruptcy of a registrar or their loss of accreditation. In reality, it is not uncommon in the event of registrar bankruptcy for ICANN to be totally unaware of the operator’s identity, with the same being true for the new registrar in charge of the domain name.

However, the new Agreement could still be modified after the period of public consultation if deemed necessary. The ICANN board will then have to approve the text before registry offices can sign contracts linking them to ICANN. Furthermore, the American Authority wishes to see these new rules in force by January 1st 2014.

For all further information, our firm remains entirely at your disposal.

The WIPO Arbitration and Mediation Center has rejected a legal rights objection filed against registration of the term .tunes as a new generic top-level domain (1).

In this case, the applicant for the TLD “.tunes” was Amazon EU Sarl and the objector was DotTunes Ltd.

Two reasons have conducted the panelist to reject the objection.

On the one hand, the objector’s figurative trademark “.TUNES” is phonetically similar to the gTLD “.tunes” but “the word tunes is, however, a generic and descriptive mark when used in relation to music”.

On the other hand, “the objector has produced very little evidence of use of .TUNES in trade or commerce”. The panelist does not consider that consumers seeing the gTLD “.tunes” would relate it to the objector. In the fourth LRO ruling to date, the WIPO panelist ruled that DotTunes’ European Community trademark wasn’t famous enough to warrant rights protection under the LRO.

DotMusic Ltd, another company of the objector’s group has applied for “.music” and also filed objections against all the other applicants for “.music”. Besides, the panelist has outlined that he “is not making findings in relation to distinctiveness of “.music” which is “the subject of other LRO proceedings”. We will continue to keep you posted !

(1) http://www.wipo.int/export/sites/www/amc/en/domains/lro/docs/lro2013-0065.pdf