New law on country code top-level domains in France and certain of its overseas territories

The law of 22 March 2011, which overhauls the legal framework governing country code top level domains in France and its overseas territories, has now been published and will enter into force on 30 June 2011 (this law will be included in the French Code on Postal Services and Electronic Communications, Articles  L.45-2 to L.45.8).
1. Scope of application

This law is intended to apply to the following top level domains : <.fr> France, <.gf> French Guiana, <.gp> Guadeloupe, <.mq> Martinique, <.yt> Mayotte, <.re> Réunion, <.pm> Saint-Pierre and Miquelon, <.bl> Saint Barthélémy, <.mf> Saint Martin, <.tf > French Southern Territories et <.wf > Wallis and Futuna.
2. Management of the domain names

Each of these top level domains will be attributed and managed by registries designated by regulation. These registries will be required, in particular, to prepare on an annual basis an activity report, to publish on a daily basis all domain names published and to provide full details on the cost of their services.  They will also be required to establish non-discriminatory and transparent rules, guaranteeing compliance with the freedom to communicate and to trade and with intellectual property rights.
Upon entry into force of the law, registrars will have to be accredited, in accordance with a non-discriminatory and transparent procedure (new Article L.45-4 paragraph 1 of the French Code on Postal Services and Electronic communications).
3. Enlargement of registrants entitled to reserve these top level domains

As from 31 December 2011, the following persons will be entitled to reserve these top level domain names: individuals residing on the territory of the European Union and legal entities having their registered office or their principal establishment on the territory of one of the Member States of the European Union.
4. Disputes

The reservation or renewal of a domain name can be refused or a domain name cancelled:
–  if it is contrary to public policy or to accepted principles of morality or to the rights guaranteed by the Constitution or by statute;
– if it infringes intellectual property rights or individual rights, unless the registrant establishes a legitimate interest and is acting in good faith;
– if it is identical or similar to a sign of the French Republic, a regional body or a national or local institution or service, unless the registrant establishes a legitimate interest and is acting in good faith.
This exception relating to a legitimate interest and good faith set out in the French Code on Postal Services and Electronic Communications does not correspond with the principle set out in the French Intellectual Property Code that acting in good faith does not exclude a finding of infringement.
The new law also provides for a dispute resolution procedure to be organised by the Registry.  The rules governing such a procedure must be approved by the Minister in charge of Electronic Communications (new Article L.45-6 of the French Code on Postal Services and Electronic Communications).
Lastly, in a press release of 11 April 2011, the AFNIC, the current French top-level domain name registry announced the suspension of the alternative dispute resolution procedures, the PARL before WIPO’s Arbitration and Mediation Centre as from 15 April 2011 and the PREDEC as from 15 May 2011.  However, the recommendation procedure before the Paris Arbitration and Mediation Centre, whose decision is not binding on parties, remains available.  Accordingly, only court action, which is long and costly, will during a few weeks be the only binding procedure available to earlier right holders in relation to infringing domain names. Details on the new dispute resolution procedure, which should become available in the forthcoming weeks, are already much-awaited.


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