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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). Read 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. Read more
News
One Private International Law Article published in the First Issue of the International and Comparative Law Quarterly for 2023
One recent article on private international law was published today in International and Comparative Law Quarterly:
A Chong, “Characterisation and Choice of Law for Knowing Receipt”
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.
Conference on PIL Aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA)
On Friday, January 20, 2023, the University of Strasbourg (France) will host a conference on the PIL aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA), organized by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.
The conference is structured in two parts. The first will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.
Full Programme:
14h00 : Propos Introductif
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
et Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES1re session – Présentation générale des règlements et étude du conflit de lois
Présidence : Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF14h10 : Présentation du règlement DMA
Frédérique Berrod, Professeure à Sciences Po Strasbourg – CEIE14h30 : Présentation du règlement DSA
Stéphanie Carre, Maître de conférences HDR à l’Université de Strasbourg – CEIPI14h50 : Scope of the regulations and conflicts of laws
Tobias Lutzi, Professeur à l’Université de Augsburg15h10 : Questions et échange avec la salle
15h30 : Pause
2e session – Les règlements et le contentieux
Présidence : Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES16h00 : Le contentieux devant les juridictions étatiques
Yves El Hage, Maître de conférences à l’Université Lyon 3 – CREDIP16h20 : Les modes extrajudiciaires de règlement des litiges
Nurten Kansu Okyay, Maître de conférences contractuelle à l’Université de Strasbourg – CEIE16h50 : Conclusions
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES17h00 : Clôture
The conference will be held both in site and online. The full program and details about the location and registration can be found here.
Conference on the evaluation of the European Succession Regulation, 20 January 2023
Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the
Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.
Simultaneous interpretation will be provided in German, English and French.
Background:
The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).
The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.
The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.
The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).
This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.
Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de
Programme:
1 p.m. Welcome reception with lunchtime snack
2.15 p.m. Welcoming address and introduction
Prof. Dr. Christian Baldus, Heidelberg
2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?
Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart
3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?
Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld
4 p.m. Questions and discussion
4.15 p.m. Coffee break
4.45 p.m. The European Succession Regulation in German judicial practice
Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt
5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation
Presenter: Notary Dr. Thomas Raff, Ludwigshafen
France, Maître de conférences HDR Paul Klötgen, Nancy
Luxembourg, Notary Anja Holtz, Esch-sur-Alzette
Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)
Portugal, Notary Prof. Sofia Henriques, Lisbon
Sweden, Attorney Ulf Bergquist, Stockholm
Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña
7 p.m.Closing remarks
Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg
7.15 p.m. End of conference