The Priority Allocation Period ('PAP') commenced on 24 March and ends on 24 September 2022. As such, all Australian companies should be looking to secure their '.au' domain name, by taking advantage of the six-month PAP for existing owners of domain names ending with '.com.au', '.net.au' or '.org.au'.
At the conclusion of the PAP, the '.au' will be released to the general public to purchase on a 'first come, first serve' basis, and unlike existing rules to obtain Australian domain names, the '.au' does not require the registrant to have registered a company name, trust name, business trading name or trade mark which corresponds to the domain name. Registration prior to the conclusion of the PAP will also allow companies to avoid the opportunity for disputes to arise, however, should a dispute occur, the governing body, '.au Domain Administration' (auDA)*, does have a dispute resolution policy for complainants in this regard.
It is important to note that current domains names '.com.au', '.net.au' and '.org.au' will not be affected by any of changes with the introduction of the '.au'.
What is the new '.au' domain, and how is it different?
As an example, an Australian florist business, 'Wild Petal Florist' currently own the following domain names:
- com.au;
- net.au;
- com.au; and
- net.au.
With the introduction of the '.au' domain, Wild Petal Florist is able to also secure 'wildpetal.au' and 'wildpetalflorist.au' during the PAP as it owns the '.com.au' and '.net.au' domain names.
However, if Wild Petal Florist does not register its interest in the '.au' name during the PAP via an approved domain name provider, then its entitlement to the '.au' domain name may be at risk, as anyone will be able to purchase it after the PAP ends on 24 September,2022.
What happens if two or more parties are interested in purchasing the same '.au' domain name?
In this circumstance, let us assume the following:
- com.au is owned by Greenyarra Apples and was registered prior to 4 February 2018 ('a');
- net.au is owned by Greenyarra Butcher and was registered after 4 February 2018 ('b'); and
- org.au is owned by Greenyarra Carwash and was registered after 4 February 2018 ('c').
If a, b and c all wish to apply for the same '.au' domain, it will become a contested domain. When there is a contested domain, the following priority rules apply for which company will be given the .AU domain name:
The creation date of the domain name on which the application is based determines the priority category:
- Priority Category 1: Names created on or before the cut-off date of 4 February 2018
- Priority Category 2: Names created after the cut-off date of 4 February 2018
As a result, in this scenario, Greenyarra Apples would be given the opportunity to secure and purchase the 'Greenyarra.au' domain name
However, what happens if there are two Priority Category 1 applicants?:
- com.au is owned by Greenyarra Apples (Priority Category 1);
- net.au is owned by Greenyarra Butcher (Priority Category 1); and
- org.au is owned by Greenyarra Carwash (Priority Category 2).
In this scenario, Greenyarra Carwash will not be given an opportunity to own the domain name.
As such, Greenyarra Apples and Greenyarra Butcher will be left to negotiate an agreement between each other as to which party is to own the contested '.au' domain name. If the parties cannot come to an agreement, then each party is required to pay an annual 'priority hold' fee to keep its application for the contested '.au' domain interest alive, until there is only one applicant left.
As a result of this scenario, the contested '.au' domain name will not be offered to either party to purchase until the matter is resolved.
What happens if all three parties are Priority Category 1 applicants?:
- com.au is owned by Greenyarra Apples (Priority Category 1);
- net.au is owned by Greenyarra Butcher (Priority Category 1); and
- org.au is owned by Greenyarra Carwash (Priority Category 1).
This scenario requires all three parties to negotiate who should own the contested '.au' domain. If no agreement is reached between all parties involved, then the '.au' domain will not be available for any party to own until there is only one party left still paying the annual 'priority hold' fee for the contested '.au' domain name.
How can you see if the '.au' domain you want has a priority hold?
On the auDA website, anyone can find out if a priority hold of a domain name has been applied for. In order to access this, one must simply go to https://www.auda.org.au/tools/priority-status-tool and type in the current domain name. This will then generate a report on the availability of the '.au' domain, or state the name of the party that has requested a 'priority hold.
Other take away points?
Even though it is important for a business to secure its '.au' domain name, it is arguable that it is far more important for a business to also ensure that it owns a registered trade mark for its brand.
Whilst domain names are critical to own, as they are an inexpensive method of owning online real-estate, they do not provide the registrant with any legal brand protection. Trade mark registration, however, provides the registered trade mark owner with legal rights under the Trade Marks Act 1995 (Cth) and provides the trade mark owner with valuable monopoly rights over the brand name and/or image.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
