Domain name disputes—an Australian perspective
Australian country code domain names (ending in .au) have always been more highly regulated than their .com cousins. Jim Davies looks at the current situation.
Instead of simply having a ‘first come, first served’ system, registering a .au domain requires meeting the Domain Name Eligibility and Allocation Policy Rules. These rules have been relaxed over time, leading to a greater prospect of domain disputes arising.
Eligibility and Allocation Rules
The .au country code is managed by .au Domain Administration Ltd (auDA), a not-for-profit private company limited by guarantee. auDA has been regulating the .au domain space since 1999 and the number of domains under its management currently stands somewhere over 1.7 million. By far the most popular of these for commercial organisations are the .com.au domains, followed by the .net.au domains.
auDA’s current Eligibility and Allocation Rules date from 2008. During that revision, there was considerable relaxation from previous versions. However, there remain restrictions that potential registrants need to be aware of.
For all .au domains, the registration period is fixed at two years. There is also a general prohibition on registering a domain for the ‘sole’ purpose of resale or transfer to another entity.
To register a .com.au or .net.au domain, an applicant must have some nexus in Australia. This can be an Australian company or registered trader. For overseas applicants, it is worth nothing that this criteria can be satisfied by providing proof of either an Australian trademark registration or trademark application. This latter qualification is worth noting for new entrants into the Australian market—as soon as they have applied for an Australian trademark, they are eligible to apply for .com.au domains.
"To register a .com.au or .net.au domain, an applicant must have some nexus in Australia. This can be an Australian company or registered trader."
As well as meeting one of those general registration criteria, an applicant must confirm that the specific domain is either an exact match or abbreviation of the registrant’s name; or somewhat more loosely that it is “otherwise closely and substantially connected to the registrant”. This still requires a registrant to assert a connection to the domain, but it allows quite a lot of latitude.
It is possible for an aggrieved party to file a complaint with auDA if it feels that a domain does not meet the Eligibility and Allocation Rules. It is worth noting that a successful complaint does not result in a domain transfer to the complainant, but rather the domain can be cancelled—making it available for registration to any new applicant.
The curious case of StephenConroy.com.au
Stephen Conroy is the current Australian Minister for Broadband, Communications and the Digital Economy. As such, he is responsible for Australia’s highly controversial planned Internet filter.
Amongst the protest sites objecting to the widely reviled filter was one that used the domain name StephenConroy.com.au. The registrant reported receiving a take-down notice on the afternoon of December 18, 2009, which allegedly only gave it three hours to confirm its eligibility to have registered the domain name.
Requests for more time to prepare a response were apparently denied and auDA took the site down a little more than three hours after the first take-down notice. Representations made during the 14-day pending delete period failed and auDA cancelled the domain name on January 4, 2010.
However, that is not the end of the story. The protesters—who had in the meantime migrated their site to Stephen-Conroy.com—re-registered the domain when it dropped.
As previously mentioned, a domain cancelled because it fails to meet the Eligibility Rules is not transferred, but simply cancelled. It was registered this time on the basis of the protesters having a registered business name for Stephen Conroy. So a subsequent query raised by auDA was met with this registration qualification and the domain remains a protest site, now also selling Stephen Conroy protest t-shirts and mugs.
A postscript to this is that the take-down of the domain resulted in far more publicity for the site than it would otherwise have received. On these specific facts, it seems to me that the whole thing was a counterproductive exercise. However, it does show that Australia’s Eligibility Rules can be used to have a .au domain cancelled.
The auDRP dispute process
Australia’s Dispute Resolution Policy (auDRP) takes its name and much of its content from the Uniform Domain Name Dispute Resolution Policy (UDRP), which can be used to challenge .com domain names. However, the two policies are not identical and there are some significant differences that one needs to be aware of.
The main differences between UDRP and auDRP
UDRP
