Who Owns France.com?
France is a state. France.com, by contrast, is a domain name, and it was, until recently, owned not by the French state but instead by a Californian company, France.com, Inc. That conflict is now being litigated in a fascinating dispute reminiscent of the early days of the internet.
In those early days, in 1994 to be precise, a French-born individual living in the United States, Jean-Noël Frydman, registered the domain name France.com. The domain name is now held by a Californian company, France.com Inc, which Frydman set up. The website, at first dedicated to general information for Francophiles around the world, was later expanded to operate as a travel site. But France.com, Inc, did not, it appears, own trademarks in Europe. This enabled a Dutch company, Traveland Resorts, to register French and European word and graphic marks for France.com in 2010. In 2014, France.com, Inc brought suit in France against Traveland for fraudulent filings of trademarks and achieved a settlement under which Traveland transferred the trademarks.
But that was a Pyrrhic victory. The French state and its own travel development agency, Atout, intervened in the litigation, claiming the trademarks for itself instead. Atout had been running, since 2010, its own information site, france.fr. French state and Atout were successful, first before the Tribunal de Grande Instance, Paris , and then, partly, on appeal before the Cour’ d’appel de Paris (English translation, note by Alison Bouakel) As a consequence, web.com transferred the domain in 2018. Now, France.com immediately directs to France.fr.
So far, the conflict is mostly a French affair. But Frydman is taking the litigation to the United States. France.com, Inc has brought suit in Federal Court in Virginia against the French State, Atout, and against Verisign, the authoritative domain registry of all .com addresses. The suit alleges cybersquatting, reverse domain hijacking, expropriating, trademark infringement, and federal unfair competition. US courts and WIPO panels have so far not looked favorably at foreign government’s claims for their own .com domain name; examples include PuertoRico.com, NewZealand.com, and Barcelona.com. Will the French State be more successful, given the French judgment in its favor?
Although neither the French courts nor the complaint in the United States address conflict of laws issues, the case is, of course, full of those. Are the French state and its travel agency protected by sovereign immunity? The Foreign Sovereign Immunities Act contains an exception for commercial activities and is limited to sovereign acts: Does ownership of a domain name constitute commercial activity? Surely, many of the activities of Atout do. Or is it linked to sovereignty? After all, France is the name of the country (though not, ironically, the official name.) The U.S. Court of Appeal for the Second Circuit left the question open in 2002 (Virtual Countries, Inc. v. South Africa, 300 F.3d 230).
Must the federal court recognize the French judgment? That question is reminiscent of the Yahoo litigation. Then, a French court ordered that Yahoo.com could not offer Nazi paraphernalia on its auction website. Yahoo brought a declaratory action in federal court against recognizability of the judgment in the United States. The affair created a lively debate on the limits of territorial reach in internet-related litigation, a debate that is still not fully resolved.
Relatedly, did the French state engage in illegal expropriation without compensation? Such acts of expropriation are in principle limited to the territory of the acting state, which could mean that the French state’s actions, if so qualified, would be without legal effect in the United States.
To what extent is US law applicable to a French trademark? By contrast, to what extent can the French trademark determine ownership of the domain? Trademarks are a perennially difficult topic in private international law, given their territorial limitations; they conflict in particular with the ubiquity of the internet.
Is the top level domain name – .com, as opposed to .fr – a relevant connecting factor in any of these matters? That was once considered a promising tool. But even if .fr could in some way link to France as owner, it is not clear that .com links to the United States, given that it has long been, effectively, a global top level domain. On the other hand, most governments do not own their own .com domain. And US courts have, in other cases (most famously concerning barcelona.com) not doubted applicability of US law.
A timeline with links to documents can be found at Frydman’s blog site.
The Supreme Court deals the death blow to US Human Rights Litigation
Written by Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany)
On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobel decision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). (more…)
No handshake, no citizenship – but with a second wife, everything’s fine?
Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. (more…)
Stewart and Bowker: Ristau’s International Judicial Assistance – Second Edition
David P. Stewart and David W. Bowker, Ristau’s International Judicial Assistance – A Practitioner’s Guide to International Civil and Commercial Litigation, Oxford University Press (second edition, 2021).
This welcome and comprehensive addition to the area of cross-border dispute resolution and civil procedure in civil and commercial matters was just published and marks the beginning of the New Year under the very best auspices!
The blurb on the publisher’s website reads:
‘Legal practitioners of today are dealing with cross-border disputes in civil and commercial matters in an increasingly complex transnational legal environment. This edition of Bruno Ristau’s multi-volume work International Judicial Assistance brings these complexities to the fore. The revised and updated material offers background, explanations, and practical advice on how to deal with the most important challenges and recent developments in the field of transnational litigation, including issues related to the choice of forum, choice of law, service of process, proof of foreign law, discovery of evidence, and enforcement of judgments.
Written by David P. Stewart and David W. Bowker, internationally renowned experts in public and private international law, this book offers insightful and comprehensive information on cross-border litigation by addressing issues in sequence as they are likely to be encountered in practice. A major focus is the mechanisms for international judicial cooperation and assistance, in particular those provided by regional and international arrangements such as the Hague Conventions on Service, Evidence and Apostilles, choice of court agreements, and the enforcement of judgments, as well as regional arrangements within the OAS and the EU. This book is a necessary addition for litigators in the U.S. and other common law jurisdictions who are involved in cross border disputes.’
Virtual workshop on ‘Smart Court in Cross-Border Litigation’
On Tuesday, 4 January 2022 at 11 am (CET) Max Planck Institute on Comparative and International Private Law will host a virtual workshop in the series “Current Research in Private International Law”. Professor Zheng Sophia Tang (Wuhan University) will speak on “Smart Court in Cross-Border Litigation”. You can find more details here.
About the speaker:
Zheng (Sophia) Tang is a professor at the Wuhan University Institute of International Law, an Associate Dean at the Wuhan University Academy of International Law and Global Governance (China Top Thinktank), and a visiting professor at the Newcastle University. She is a barrister, an arbitrator and a mediator.
About the topic:
Smart courts integrate modern technology in the court proceedings to improve the efficiency of trial. It can particularly benefit cross-border litigation, which is remarked by the cost and inconvenience for a party to take part in proceedings abroad. However, the current construction of smart courts primarily focuses on domestic trials and leaves the cross-border litigation behind. Although technology can improve procedural efficiency, legal obstacles in cross-border litigation make the efficiency impossible to achieve. Identity verification, service of proceedings, evidence and hearing are four examples demonstrating how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of smart courts in cross-border litigation. In order to fully embrace the benefit of smart courts, the concept of judicial sovereignty needs to be reconceptualised in the age of technology.
About the virtual workshop series:
The virtual workshop series “Current Research in Private International Law” is organised by Prof. Dr. Ralf Michaels and Michael Cremer. The series features guest speakers and Institute staff members who present and discuss their work on current developments and research topics in private international law. The workshops are geared to scholars who are researching in the field of private international law, but attendance is open to all individuals having an academic interest (including doctoral candidates and students).
HCCH Monthly Update: December 2021
Meetings & Events
On 1 December 2021, the HCCH hosted HCCH a|Bridged – Edition 2021, an online event focused on contemporary issues relating to the application of the HCCH 2005 Choice of Court Convention, including the promotion of party autonomy. More information is available here.
On 6 and 7 December 2021, the HCCH Administrative Cooperation Working Group on the 2007 Child Support Convention met via videoconference. The Group continued its work as a forum for discussion of issues pertaining to administrative cooperation, discussing in particular the collection of statistics under the Convention. More information is available here.
On 10 December 2021, the HCCH hosted a virtual seminar on the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention for the Supreme Court of Ukraine. This was the third of a series of seminars, organised with the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine.
Publications and Documentation
On 9 December 2021, the Permanent Bureau announced the publication of translations, in Arabic, Chinese, Russian and Spanish, of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. With these new translations, the Legal Guide is now available in all UN languages. More information is available here.
On 14 December 2021, the Permanent Bureau announced the publication of 21 new translations of the Guide to Good Practice on the Use of Video-Link under the Evidence Convention. With these new translations, the Guide to Good Practice is now available in 23 European Union languages. More information is available here.
Applications are now open for the 2022 Peter Nygh Hague Conference Internship. The deadline for the submission of applications is 30 January 2022. More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.