[AfrICANN-discuss] INTERNET LAW - .eu Top Level Domain Names and Public Policy Considerations

Anne-Rachel Inné annerachel at gmail.com
Sat Feb 6 08:51:39 SAST 2010

INTERNET LAW - .eu Top Level Domain Names and Public Policy Considerations
 *Martha L. Arias, IBLS Director
Wednesday, February 03, 2010*

A Top Level Domain system that encompasses several geographical regions
requires careful consideration of domestic policies and legal principles.
Indeed, just as an economic regional agreement requires consideration of
each country''''''''''''''''s financial situation, among others, sharing a
Top Level Domain system requires the analysis of the states'' public
policies and legal principles.  For instance, the European Union''s Top
Level Domain system, .eu, is subject to community regulations that
appropriately address the concerns of the member states. This article
provides information on public policy considerations incorporated in the .eu
Top Level Domain system regulations, and an example of how these public
policy considerations triumph individual''s rights.

The European Union (EU) regulates the .eu Top Level Domain system (TLDS)
through Regulation (EC) No. 733/2002 of the European Parliament and of the
Council of April 22, 2002, and implementing Regulation No. 874/2004.   Two
articles of Regulation 733/2002 particularly address public policies
regarding .eu TLDS.

Article 5 of Regulation 733/2002, a mandate to the Commission, states that
the implementation of .eu TLDS must include public policy principles on
registration. The following are the public policy considerations that this
regulation requires,

"(a) an extra-judicial settlement of conflicts policy;

 (b) public policy on speculative and abusive registration of domain names
including the possibility of registrations of domain names in a phased
manner to ensure appropriate temporary opportunities for the holders of
prior rights recognized or established by national and/or Community law and
for public bodies to register their names;

 (c) policy on possible revocation of domain names, including the question
of *bona vacantia* ;

 (d) issues of language and geographical concepts;

 (e) treatment of intellectual property and other rights."

The use of geographical language and concepts is a sensitive issue when it
comes to registration of domain names. For this reason, Regulation 733/2002
particularly addresses this concern. For instance, this regulation requires
that member states notify to the Commission and other member states a
limited list of broadly-recognized geographical and/or geopolitical names
that affect their political or territorial organization. The list included
names that may either "(a) not be registered, or (b) be registered only
under a second level domain according to the public policy rules." Then, the
Commission shall notify the Registry the list of notified names and publish
the list.

Article 7 of Regulation No. 733/2002 introduces another public policy
consideration. It states that the Community will retain all rights relating
to the .eu TLDS. This includes intellectual property rights to the Registry
databases and the right to re-designate the Registry. This is an extremely
important public policy principle, fundamental to an orderly administration
of the TLDS.

Regulation No. 874/2004 implemented Regulation 733/2002.  The preamble to
Regulation No. 874/2004 introduces a policy consideration when it states
that the Commission is authorized to select domain names to be used by the
institutions of the Community, and to designate the operator of those domain
names.  Also, the Registry is empowered to reserve some domain names for its
operational functions.  Lastly, the preamble states, member states are
authorized to designate an operator that will register as a domain name the
country''''''''''''''''s official name and the name under which it is
commonly known.

In addition to this policy consideration in the Regulation''s preamble,
Regulation No. 874/2004 incorporates mandates that directly address domestic
legal topics such as trademarks and copyrights, among others. Article 10(1)
of Regulation No 874/2004 introduced an extremely important public policy
principle for the .eu TLD States that "[H]olders of prior rights recognized
or established by national and/or Community law and public bodies shall be
eligible to apply to register domain names during a period of phased
registration before general registration of .eu domain starts."Prior rights"
shall be understood to include, inter alia, registered national and
community trademarks, geographical indications or designations of origin,
and, in as far as they are protected under national law in the Member State
where they are held: unregistered trademarks, trade names, business
identifiers, company names, family names, and distinctive titles of
protected literary and artistic works."

The Commission, through Decision 2002/375/EC of May 21, 2003, designated the
European Registry for Internet Domains (EURid) as the non-profit agency in
charge of managing .eu TLDS. EURid is incorporated under the laws of
Belgium.  *Galileo Lebensmittel GmbH & Co v. the Commission of the European
Communities*, *2009 ECJ EUR-Lex LEXIS 138, is a*n interesting case involving
a EURid decision and the .eu TLDS regulations.

*Galileo Lebensmittel GmbH & Co *is a company that holds several trademarks,
including the word mark *Galileo* registered with the German Patent and
Trademark Office. Galileo applied to EURid for the registration of the
domain name Galileo.eu.  EURid denied the application because the Commission
had reserved this domain name for its institutions and bodies, as authorized
by Regulation No. 874/2004.  Galileo then brought an action for annulment of
the Commission''s decision to reserve the domain name Galileo.eu for its
institutions and bodies. The court of first instance denied Galileo''s
claim. Galileo appealed before European Court of Justice (ECJ).  The ECJ
confirmed the court of first instance and, after the analysis of several
legal issues, held that "an individual to whom a Commission decision is not
of direct and individual concern and whose interests are therefore
unaffected by that measure cannot invoke the right to judicial protection in
relation to that decision."  In other words, the ECJ considered that Galileo
was not entitled to judicial protection in regards to the Commission''s
decision to reserve Galileo.eu for its operations because that decision was
not of direct or individual concern.  Public policy and the Commission''s
rights to reserve domain names triumph the prior rights principle
established by Regulation No. 874/2004.
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