83% success rate for claims involving domain names created 3 to 6 months

December 2012

The platform implementing the Syreli dispute resolution procedure was opened by Afnic on November 21, 2011, after publication of its rules and regulations in the Official Journal on November 3, 2011. The dispute resolution system is part of the new legal framework set up after the decision of the French Constitutional Council of October 6, 2010. It applies both to the .fr TLD and to the other extensions managed by Afnic (Mayotte, Reunion Island, Saint Pierre and Miquelon, the French Southern and Antarctic Territories, Wallis and Futuna).

 

Claimants must demonstrate, through a case filed through the Syreli platform on one hand that they have a right to bring action, and secondly that the domain name in dispute is liable to undermine public order, morality or the rights guaranteed by law, intellectual property rights or personality rights, or that it is identical or related to the names of local authorities or public institutions. Holders then have a right of reply through which they can demonstrate their legitimate interest in the domain name and their good faith in registering it; Afnic then gives a ruling within two months after the claim has been filed.

 

An analysis of Syreli proceedings since opening the platform in November 2011 shows that complaints about names registered for a long time result less frequently in a favorable decision than names registered more recently: domain names registered three to six months previously result in a favorable decision for the complainant in 83% of the cases, while the rate drops to 49% only for those more than three years old.

 

Domain names with less seniority which are involved in Syreli proceedings may reflect equally recent attempts at cybersquatting. Conversely, older domains may be associated with websites with specific content, and it is therefore more difficult for a rights-holder to prove the absence of legitimate interest and the bad faith of the holder. The seniority of the domain name in question may also preclude the use of arguments based on the priority of a trademark or a similar domain name under another extension.  For a rights-holder potentially implicated by a domain name with the .fr extension, it therefore seems more effective to quickly initiate Syreli proceedings after the filing in dispute.

 

Indeed, a majority of the domain names involved in Syreli cases have been recently filed: one third of them are less than six months old, nearly half are less than one year old, two-thirds less than two years, and three-quarters less than three years. The most recent domain name involved in Syreli proceedings was seven days old on the date the claim was filed; the one with the greatest seniority was 12 years old.

 

At the end of its first year of existence, 157 Syreli claims had been filed, and 138 decisions had been handed down by Afnic, averaging almost one ruling every three days. A gradual acceleration in the process can also be observed, with values approaching or exceeding some twenty decisions a month since the summer of 2012.

 

Claimants request the transfer of the domain name in question in most cases (93%); only 7% of them request the deletion of the name without any transfer. After the Syreli proceedings, two-thirds of the claimants’ motions were accepted by the Afnic College, against one third which were denied.

 

Also worth noting is the fact that more than half of the holders of the domain names in question did not reply after the claim was filed by the applicant (55%). Of the holders who actually used their right of reply, 13% accepted the measure proposed by the claimant of their own volition, while 32% filed a plea to keep the domain name.

 

The claimants were mostly corporate bodies (under private law in 86% of the cases and in the public sector in 7% of the cases), individuals representing only 7% of the claimants. The proportion is reversed with respect to the holders of the domain names in dispute: 63% of them were individuals, compared with 37% of corporate holders.

 

With regard to the nationality of the parties, the holders of the domain names concerned were mainly French (in 91% of the cases), the proportion being slightly lower for claimants (79% were French, 21% were foreign). Among the claimants involved in Syreli decisions handed down between November 2011 and October 2012, companies among others were noted in the trade and retail sectors (Le Coin Des Bonnes Affaires, E.Leclerc, FNAC, Galeries Lafayette, Mr Bricolage, Optic 2000, vente-privee.com, Zalando), in banking and insurance (CIC, Crédit Agricole, Crédit Mutuel, La Banque Postale, la Mutualité Française), information and communication technologies (Apple, CSC, Gfi Informatique, Logica, Orange, Samsung, Sopra, Yahoo!), and industry (E.l.m. Leblanc, General Electric), as well as the tourism and leisure sectors (Lego, Palais omnisport de Paris Bercy, Tour Eiffel). There were also local authorities (the municipalities of Balma and Saint-Pierre du Vauvray, the Jura and Saône-et-Loire departments), government agencies (the French National Family Allowance Fund, the Official Journal) and a politician.  Some of the names incriminated were similar to typosquatting (use of typos, such as "creditmuteul.fr") or dotsquatting (by prefixing the domain name with the "www" string of characters as in "wwwcaf.fr").

 

Syreli decisions are subject to appeal before a court, in which case the domain name remains suspended until the final decision. Of the 138 decisions handed down to date by Afnic, only one has been subject to judicial review. The domain concerned is a name with accented characters which was registered after IDNs were opened in the .fr zone in July 2012 and related to the name of a local authority.


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