Eligibility of a holder located in the United Kingdom post Brexit

Since the United Kingdom announced that it wished to leave the European Union, many people have asked us about Afnic’s position on the eligibility of registering a .fr domain name for persons located in the United Kingdom.

Until midnight on 31 January 2020, the effective date of the United Kingdom’s withdrawal from the European Union, Afnic’s position was as follows: wait for the precise provisions of Brexit and apply the principle of non-retroactivity of laws.

The SYRELI College had occasion to position itself quickly on this question since on 27 December 2019 an applicant domiciled in the United Kingdom requested the transfer of the domain names and via the SYRELI procedure.

As a reminder, according to the provisions of Article L.45-6 of the French Post and Electronic Communications Code (hereinafter referred to by its French abbreviation ‘CPCE’), “Any person with an interest in acting may request the competent registry to cancel a domain name or transfer it to him providing the domain name falls within the cases provided in Article L. 45-2”.

In this case, in decisions FR-2019-01940 vinted-important.fr and FR-2020-01943 wwwvinted.fr, the applicant argued that the registration of the domain names was likely to breach its intellectual property rights and more specifically its ‘VINTED’ brands and that the holder had not shown any legitimate interest and was acting in bad faith (see grounds provided in Article L.45-2 2 of the CPCE).

In this context, the College, meeting on 6 February 2020, first of all considered that the applicant did indeed have an interest in acting with regard to its ‘VINTED’ brands which pre-dated and were similar to the disputed domain names, and then turned to consider the applicant’s eligibility since the latter wished to obtain the transfer of the domain names in its favour.

As a reminder, Article L. 45-3 of the CPCE provides: “The following may request the registration of a domain name, in each of the top-level domains:

• Natural persons residing in the territory of the European Union;
• Legal persons having their registered office or main establishment in the territory of one of the European Union Member States”.

The question arising was therefore whether the applicant, a legal person domiciled in the territory of the United Kingdom and therefore outside the European Union since 31 January 2020, could request the transfer of the disputed domain names.

In both decisions, the question was settled by the SYRELI College in the following manner: “On 29 January 2020, the European Parliament ratified the withdrawal agreement of the United Kingdom from the European Union for a withdrawal effective at midnight on 31 January 2020. However European Union law will cease to apply to the United Kingdom only at the end of a transitional period provided until 31 December 2020. Given the current state of affairs as regards communications made on Brexit, the SYRELI College considers that the Applicant is fully eligible for Article L.45-3 of the CPCE […] Therefore the College has ruled that the request for transfer was admissible […]”.

The question of what happens after the ‘transition’ remains unresolved. What will happen as of 1 January 2021? Our reply to this question continues in the same vein as previously: it will depend on the legal and regulatory provisions in force at that date. In any case, the principle of non-retroactivity of laws will continue to apply to all domain names already registered with .fr.