Afnic is not obliged to take precautionary measures

Reminder: a summons had been served to Afnic and to one of its registrars by 13 French companies concerning the registration of 129 domain names infringing the companies’ rights. The companies sought redress only against the registrar and Afnic as the Registry for the .fr TLD, without holding the owners of the aforementioned domain names liable for the infringement.

Besides the fact that the registrar was accused of allowing the registration of the aforementioned domain names, the Registry for the .fr TLD was accused of:

• not having proceeded to suspend or block the domain names as soon as the summons had been served;

•  allowing individuals to anonymously register a domain name under the .fr TLD.

The decision on appeal of October 19, 2012 by the Paris Court of Appeal upheld the ruling of the Paris Ordinary Court of First Instance of August 26, 2009, and in particular:

• Regarding the anonymity of Whois data, both at the Ordinary Court of First Instance and on appeal, Afnic’s liability was excluded, and its anonymous registration procedure was upheld by the Court of Appeal of Paris.

• Concerning the suspension and blocking of the domain names, the Paris Court of Appeal confirmed that Afnic committed no fault in not blocking and in not suspending the domain names. The Court of Appeal further ruled that:
  • Article L.45 of the French Electronic Communications and Telecommunications Act “does not oblige [the Registry] to suspend or block domain names or, in general, to take precautionary measures in cases of pre-litigation or litigation, any more than it grants [the Registry] the right to do so”.
  • “the reputed nature of certain trademarks not having been retained by the Ordinary Court of First Instance, if, therefore, Afnic had implemented suspensive or blocking measures on simple request by the holders of the trademarks, it could have been accused with even greater justification of having restricted freedom of trade, and held liable for same”.

Afnic welcomes this decision which upholds its practices.

For these various reasons, even though the legal framework for domain names under the .fr TLD has changed, Afnic does not implement suspensive or blocking measures on simple request from third parties.

Afnic reminds rights holders that they have several options for resolving disputes over domain names with extensions for which it is responsible:

•  Afnic implements any court order applicable to it

• The procedure for lifting anonymity is both free of charge and quick to implement (it takes less than 5 days) as described here

• The Syreli procedure, which enables right holders to request the transfer or deletion of a domain name within 60 days : https://www.syreli.fr/

For a legal analysis