A. The .eu Domain Name

1. On 2 February 2000 the European Commission issued a 15 page paper proposing the creation of a new ccTLD entitled .eu. The full English text is available on:

2. Although EU is not an approved 2-letter Country Code within the ISO 3166 Standard, the Commission claims to have "reserved" it with the Maintenance Agency for ISO 3166. It also claims to have the support of this Agency that EU should indeed be recognised as an official identifier for the European Union, but I have heard it said that in the past the Agency has always resisted any attempt to register a code for a geographical region as opposed to a code for an individual country.

3. The Commission's paper states that a .eu ccTLD would have these advantages:

i)  It would strengthen the image and infrastructure of the Internet in Europe, for the purposes of the European Institutions, private users and for commercial purposes including electronic commerce.

ii) It would offer all businesses, Europe-wide, a consistent European identity at the same time as offering plenty of scope for the foreseeable future for second and/or third level domain registrations in a wide range of alternative languages for the purposes of cross-border and international trade.

In other words .eu is seen, and would be used, as a European alternative to .com which, outside the USA, is widely perceived as being an American preserve. As such, there seems little doubt that .eu would come to be used as a gTLD even though it is proposed that it should be created as a ccTLD.

4. The Commission proposal has already achieved widespread popular support, admittedly mostly from individuals. The majority of organisations and associations are still evaluating their response. Comments should be posted on [email protected] before March 15 2000.

5. Despite this initial enthusiasm for the idea within Europe, the proposal has the following disadvantages:

i)  the possibly dangerous precedent that the creation of a regional ccTLD, such as .eu, might create. If the ISO and ICANN are prepared to accept the Commission's arguments, then what is to stop other regions of the world from creating their own ccTLDs? Areas such as Latin America, the ASEAN countries, or the countries of the former USSR might similarly wish to "strengthen their image and infrastructure", and for equally valid reasons.

ii) the concept of a .eu domain name cannot be considered in isolation. The Commission must take into account the ICANN discussions on the creation of new TLDs which are taking place within Working Group C of the DNSO, and should only pursue the creation of .eu either subsequently or at the same time as any new gTLDs are brought into existence.

iii) it will lead to the warehousing and pre-registration of likely domain names. Indeed there is some evidence of persons already jumping on to the bandwagon - even before the Commission paper was published and the wagon began to roll -  and offering to pre-register names in the .eu domain name space. They say that when it becomes a reality they will use their "reasonable commercial endeavours" to register the requested name. To us this is clear evidence that cybersquatters will seize on the isolated creation of this new domain name to indulge in a name feeding frenzy at the expense of names belonging to legitimate traders and individuals.

iv)  it looks like an attempt by the European Union to hijack the denominator EU. This may be the obvious choice for identifying Europe as a geographical area, but if it is to be the designation of the European Union, then this will be at the expense of other countries -  such as Switzerland, Norway, Hungary, Poland, or even Russia - who quite legitimately consider themselves to be European and who will thereby be excluded and have every reason to object.

6. Other issues which will need to be addressed include:

i)   The legal framework for the .eu domain name, and the jurisdiction by which it will be governed.

ii)  The extent to which the European Commission will retain "control" over the new domain name and be a "guide" to its future policy. Government interference is anathema to the Internet community, and the track record of the Commission and its Member States in this respect is not good.

iii) There are difficult questions to be addressed over who should run a .eu registry. A consensus appears to be forming around the idea of a not-for-profit organisation, but where should it be situated, how will it be funded, and what role will the existing national registries play in it?

iv)  Who will be entitled to register in the .eu domain name? The Commission proposes it should be open to any company, firm, or organisation, incorporated or having its seat in a Member State of the EU. There are 15 Member States at present, 6 countries scheduled to join in the next few years, and discussions regarding membership have just commenced with 7 more countries.

v)   Whether a special language regime should be adopted. [At present the EU has 11 official languages with more coming as the EU is enlarged.]

vi)  The registration policies to be adopted.

vii)  The role of the ultimate end user, and if he/she would truly benefit from such a domain name.

viii)  What dispute resolution policy should be adopted -  the WIPO recommendations, or the ICANN variations on this?

7. All of these issues will be the subject of intense discussion in the coming months. The Commission is proposing the following ambitious timetable with a view to completing it in the autumn (fall) of 2000.

i)  Evaluation of responses

ii)  Report to, and approval by, the Council of ministers and the European Parliament,

iii) Formal application to ICANN,

iv) Receipt of expressions of interest in running the EU Registry and formal submissions from qualified consortia,

v) Assessment of these submissions,

vi) Agreement to create a Registry.

B. Moves to prevent Cybersquatting


The Ministry of Economic Affairs in Belgium published, in November 1999, the draft of a Bill on the "Abusive Registration of Domain Names".  The Bill is rather poorly drafted, and contains a number of inconsistencies, as it was prepared in a hurry. Its aims are twofold: to establish a new criminal offence and a specific civil procedure in cases of domain name grabbing.

Regarding the criminal aspects, it would be prohibited to record a domain name maliciously, or with the aim of obtaining an illegitimate advantage, if the name is identical to a third party's trademark or trade name or is similar enough to create confusion. Sanctions would range from 1 month to 5 years' imprisonment and/or fines ranging from EURO 5,000 to 150,000 (which is slightly less in US $).

The civil procedure would enable the President of the Commercial Court to order the cessation of domain name grabbing.

The draft only relates to trademarks and trade names, and offers no protection for other rights such as company names, signs or indications of origin. However there is provision for parties other than the owner of the trademark or trade name to bring proceedings, such as the Ministry of Economic Affairs, professional or inter-professional groups and certain associations authorised by the Minister of

In general the Bill seems to offer less protection than other regulations currently used in Belgium to fight cybersquatting (such as the Benelux Trade Marks Act, the Paris Convention, or the Belgian Trade Practices Act) because, unlike them, it requires that bad faith be proved.


The European Commission paper on the .eu domain name which is described above also asks whether any additional measures are necessary to combat cybersquatting.

There are those who propose to respond by calling for a new Directive on the subject. [For the ignorant, the contents of an EU Directive must be discussed with the interested circles, agreed between the Member States, passed by the European Parliament, and approved the Council of Ministers. Depending on the subject matter, the agreement of the Member States might have to be unanimous. At the end of this process a date is set by which every Member State must incorporate the contents of the Directive into its national law. All of this can be a very lengthy process.]

First indications are that the Commission is not keen on the idea of a Directive. It does not feel there is a need for one, given the way in which the courts have coped with cases so far, the popularity of the ICANN UDRP, and the time it will take to get a Directive approved.


In June 1999, the WIPO Standing Committee on the Law of Trade Marks, Industrial Designs, and Geographical Indications. (SCT) began a detailed discussion on the use of trademarks on the Internet. At its next meeting, from March 27-31, it will have before it draft provisions dealing with the protection of trademarks and other distinctive designs on the Internet.

This draft contains 12 Articles, and it makes no attempt to disturb existing national rights or existing provisions relating to trademark infringement. Instead it seeks to add to them, as a possible ground for infringement, the use of a sign on the Internet. However to qualify as such the use of the mark must have "produced a commercial effect" in the country concerned. The draft attempts to define what this is in a non-exhaustive list of 13 factors that could be taken into account when assessing if this has occurred, but it also makes it clear that an assessment should be made on the basis of all the relevant circumstances.

Certain safeguard provisions are included, e.g. for the non-commercial use of a trademark, for the right of free speech, and in connection with trademarks duly protected in another country. There are also provisions relating to bad faith use. The document concludes with the possible provision, in certain circumstances, of a global injunction.

These provisions are only in their second draft, and it will be recalled that it took the SCT four years to arrive at a consensus resolution on well-known marks. There can therefore be no forecast when - or if - they will be adopted.

It has been reported that during a recent meeting in Sydney Australia of GATT the delegates took the view that WIPO's draft provisions were somewhat limited and that they should be expanded in order to, for example:

i)  Develop clear and positive guidelines for combatting cybersquatting to be used by the registries responsible for registering ccTLDs;

ii) Expand the protection currently afforded by the above draft provisions to include other peripheral IP rights such as _
        - International Non-Proprietary pharmaceutical names.
        - Geographical indications.
        - Place names.
        - Personal names.
        - The names of national states and intergovernmental organisations, as defined in Article 6 ter of the Paris Convention.
        - The names of entities which are not otherwise protected.

David Tatham
February 20 2000