Brexit and .EU domain names

UK individuals and businesses are set to lose the right to own .EU domain names when the UK leaves the EU. It is estimated that over 300,000 .EU domain names are owned by UK based individuals and companies and these are set to be automatically revoked when the UK leaves the EU later this year.

The .EU domain name was launched in 2006 and, while it has struggled to gain market share against the more traditional top level domains (TLDs), such as .com and national domain names (ccTLDs) such as .uk and .co.uk, as of 2013 over three million had been registered with UK registrants owning nearly 10% of these (the fourth highest percentage by country after Germany, the Netherlands and France). These .EU domains are often used as secondary domain names to resolve to websites linked to a primary .com or.uk domain name but some, such as Leave.EU have been more prominently used.

Back in July 2019 the European Commission issued an updated notice to stakeholders titled “Withdrawal of the United Kingdom and EU Rules on .EU Domain Names“. This notice was a follow up to the earlier notice of March 2018. The notice provides the Commission’s position on the registration, renewal, maintenance and governance of .EU domain names and the implications of the UK leaving the EU. It confirms that, as at the date of the UK’s withdrawal, subject to any transitionary period, the UK will become a ‘third country’. This poses difficulties for .EU domain name holders that are UK citizens residing in the UK, and for businesses and organisations established in the UK.

EURid, the Registry for .EU domain names, issued a Brexit notice shortly after the Commission’s notice.

European Regulatory Framework governing .EU domain names

.EU domain names are largely governed by the Regulation (EC) No. 733/2002 of the European Parliament and of the Council of 22 April 2002 (the Regulation), as amended in part by the incoming Regulation (EC) 2019/517 of the European Parliament and of the Council of 19 March 2019 (the 2019 Regulation). The updated eligibility criteria in the 2019 Regulation shall apply from 19 October 2019. Note that this date is shortly before the UK’s expected withdrawal date.

We summarise the key points of the European Commission’s notice to stakeholders below:

Registration and renewal of .EU domain names after the UK’s withdrawal

The 2019 Regulation sets out its eligibility criteria in Article 3, previously the Regulation contained this criteria in Article 4(2)(b). Under the 2019 Regulation, the following persons are eligible to register .EU domain names:

1. Natural persons who are EU citizens (new under the 2019 Regulation);
2. Natural persons who are not EU citizens but who are resident in an EU Member State;
3. Businesses that are established in the EU; or
4. Organisations that are established in the EU, without prejudice to the application of national law.

At the withdrawal date, natural persons who reside in the UK and are not citizens of another Member State, and undertakings and organisations that are established in the UK, will not be entitled to request the registration or renewal of .EU domain names. Note however that due to the incoming amendments to the Regulation, natural persons who are resident in the UK, but citizens of another EU Member State, will still be eligible.

Existing .EU domain names

The Registry is entitled to revoke .EU domain names on its own initiative for various reasons, including where the domain name holder is no longer eligible (in accordance with the above criteria). In these instances, the Registry is not obliged to refer the revocation dispute to any extrajudicial settlement of conflicts (Article 20(b) of the Commission Regulation (EC) No 874/2004 of 28 April 2004 (the 2004 Regulation)).

This puts some existing .EU domain names at risk, where the domain name holder is a natural person residing in the UK and not a citizen of a remaining Member State and businesses and organisations only established in the UK.

Recognition of UK rights in .EU domain name disputes

The 2004 Regulation allows for .EU domain names which are identical or confusingly similar to existing rights that are recognised by the EU or a Member State, to be the subject of revocation by appropriate judicial or extrajudicial procedure. Following the UK’s departure from the EU, rights which are only recognised by the UK (and not the EU or a remaining Member State) cannot be used to invoke such proceedings.

What to do?

It is important that UK individuals and businesses use this as an opportunity to review their domain name portfolios. Insofar as these include .EU domain name(s), then if these are required by the individual or business, consideration should be given to transfer them to a business established in the EU (which in many cases may mean the branch office or subsidiary of the UK business) or to EU citizens or residents.

If you have any questions or would like to discuss this topic further, please contact Nick Phillips – Partner, or any other member of the Edwin Coe Intellectual Property team.

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