Australia: Want []? - auDA consultation regarding competing claims to register .au domain names

Last Updated: 28 October 2017
Article by Timothy Webb

Australian businesses, particularly those that could potentially face a competing claims scenario, should consider making a written submission by Friday 10 November 2017.

Australian internet users could soon have the choice of registering a name directly before the dot in .au, for example, under proposed policy reforms detailed in a new auDA Issues Paper.

On 6 October 2017, the body responsible for the Australian domain name system, .au Domain Administration Limited (auDA) released its Issues Paper "Implementation of Second Level Domain Name Registrations (Direct Registration)".

auDA is seeking public comment by Friday 10 November on what could be the most substantial change to the .au domain name space in over 30 years.

The lead-up to the .au changes

In April 2016 the auDA Board formally approved the introduction of second level domain name registration for .au (eg. < WEBSITENAME.AU >), known as Direct Registration, and requested the development of an implementation plan.

The auDA Board subsequently established the 2017 Policy Review Panel to develop an implementation policy for Direct Registration that covers registrants, registrars and complainants.

As part of the Panel's first phase of work, it has invited public consultation on three key implementation issues:

  • priority registration rights for existing registrants matching .au name, and allocation methods;
  • reservation of names for future use as 2LDs or other purposes; and
  • mechanisms for implementing direct registration.

The Panel will also have regard to the issues raised by the 2015 Names Policy Panel Final Report (which followed an earlier 2015 public consultation on whether Direct Registration should be allowed).

The introduction of a new class of domain names under .au follows changes in a number of comparative jurisdictions such as the United Kingdom (.uk) and New Zealand (.nz) permitting Direct Registration and seeks to demonstrate that the Australian economy is moving with the times.

Priority registration policy

Of particular relevance to Australian businesses are the issues related to priority allocation between competing claims.

A competing claim arises where two separate parties both may want the same .au registration. For example, where one entity is the registrant of < XYZ.COM.AU > and another entity is the registrant of < XYZ.NET.AU >, who should be entitled to register < XYZ.AU >?

Competing claims resolution process

The Issues Paper canvasses options to resolve competing claims. The Panel has also invited submissions on alternative resolution processes.

The options set out in the Issues Paper include:

  • Order of priority: Under this approach priority would be given to registrants of existing domain names based on an order of priority taking into account the second level domain or some other factor. For example, the registrant of the domain name could take priority over the registrant of the domain name.

The difficulty with this approach lies in justifying which domain name zones will have priority over others, particularly because the current second level domain structure is based on special purpose categories which serve different needs within the Australian community, for example, is used for educational institutions.

  • Longest continuous registrations: This approach would resolve competing claims in favour of the longest continuous registration or creation date of a domain name.
  • While this provides an objective date to resolve competing claims, the disadvantage of this process is that registrants of legacy but inactive domain names will be prioritised over registrants that have actively used the domain name more recently.

  • Longest continuous registrant: Under this option, priority would be given to the registrant who has held the domain name licence for the longest period of time.

This approach assumes registrants have invested significant resources in their online presence and recognises that domain names are an essential part of a registrant's goodwill and reputation. However, it may have the effect of giving priority to a registrant that has continuously renewed the domain name licence but has never configured an active website. It may also disadvantage registrants that have acquired a domain name licence on the secondary market.

  • Lottery or random allocation: A lottery system would allow a registrant to purchase a lottery ticket for each domain name licence held by them. The winner of the lottery would have the right to register the second level domain name.
  • The benefit of this approach is that all registrants who purchase a lottery ticket have an equal chance of winning the lottery, but it may cause significant uncertainty for registrants.

  • Auction: Registrants with conflicted names could bid at auction for the exact matching second level domain name, with the highest bidder winning the right to register the second level domain name.
  • This option would favour registrants with the deepest pockets and disadvantage not-for-profits, small businesses and individuals. It may also be inequitable as registrants of domain names that are not conflicted will be able to register second level domain names at the retail registration price, while conflicted name registrants will pay the market price

There is unlikely to be a perfect solution to resolve all competing claim scenarios.

However, the existing .au Dispute Resolution Policy will continue to apply to all Direct Registrations such that any dispute regarding entitlement to a .au domain name between registrants with competing rights will continue to be resolved under these principles.

What should Australian businesses do now?

Australian businesses, particularly those that could potentially face a competing claims scenario, should consider making a written submission by Friday 10 November 2017.

The Panel will then undertake a second round of public consultation after reviewing the submissions, which may involve publication of a preferred options paper or draft policy, and report to the auDA Board by 31 August 2018.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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