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NPAP Meeting - 12 December 2000

Mallesons Stephen Jaques
Level 60, Governor Phillip Tower
1 Farrer Place, Sydney

Present: Philip Argy, Evan Arthur, Steve Fielding, Odette Gourley, Rowan Groves, Cheryl Langdon-Orr, Jo Lim, Christine Page-Hanify, Daniel Rechtman, Peter Reynolds, Josh Rowe, Cathy Thawley, Derek Whitehead, Ross Wilson

Teleconference: Alan Chalmers, Kitty Davis, Brandon Gradstein, Stuart Hamilton, Tony Hill, Ron Ipsen, Ian Johnston, Cliff Reardon, Michael Wolnizer, Anthony Wyatt

Apologies: Sandra Davey, Mark Davidson, Ian Halliday, Keith Inman, Steve Pretzel, David Purdue, Leanne Schultz
Tony Serong, Galen Townson

Observer: David Lieberman

Actions:

1. DW and JL to draft minutes from meeting.
2. DW and JL to revise the first public consultation report to reflect changes discussed at the meeting, and circulate it to the Panel via the closed list before the next meeting.
3. JL to send first public consultation report to WIPO.

Decisions:

Second public consultation report
1. The Chair and secretariat will revise the first public consultation report to reflect discussion at the meeting, and circulate it to the Panel via the closed list before the next meeting.

WIPO Second Domain Name Process RFC
2. The secretariat will send a copy of the first public consultation report to WIPO, for information, in response to its Second Domain Name Process RFC.

Next meeting
3. The next Panel meeting will be in Melbourne on Tuesday 30 January 2001.

Discussion:

The Panel welcomed new member Alan Chalmers from the Australian Communications Authority (ACA). The auDA Board approved the appointment of a representative from the ACA, in recognition of the ACA's new role in relation to domain name regulation following passage of the Telecommunications Legislation Amendment Bill 2000.

1 Confirmation of 31 October Minutes

Public consultation process
Panel members agreed that the 3 week consultation period did not give people much time to prepare submissions, however the Panel acknowledged that a number of well-considered, substantive responses were received.

Panel members remarked that many respondents lacked knowledge of the existing policy, leading them to think that the Panel was proposing more stringent policy rules when in fact the reverse was true. Inaccurate media reports compounded the situation. It was suggested that the next iteration of the report should include a short summary highlighting the main proposed changes and how they are different from existing policy.

The Panel thanked Ian Johnston for his efforts in stimulating discussion of the report on the Link and DNS mail lists.

Public comments on proposals
The Panel considered public comments on the proposals in the public consultation report.

• Proposal 4.1.1 - eligibility to apply for a domain name licence
  Respondents were generally in favour of the proposal to include a registered trade mark as an eligibility criterion. Although there were some notable objections, on balance, respondents were also in favour of including a trade mark application as an eligibility criterion. The Panel considered that the domain name licence renewal policy and a robust dispute resolution procedure should adequately address the situation where a trade mark application does not proceed to registration.
• Proposal 4.1.2 - one domain name licence per entity
  Submissions on this proposal were unanimously in favour of removing the restriction on the number of domain names that one entity is permitted to license. The Panel considered it was unnecessary to impose a quota on domain name licences, as suggested in one submission.
• Proposal 4.1.3 - direct derivation of a domain name from an entity name
  The Panel noted that this proposal attracted a significant amount of criticism, however, the Panel re-asserted its commitment to a derivation rule of some kind, ie. the domain name must be in some way connected to the domain name holder.

  The Panel agreed that the proposal as currently drafted is unworkable. In particular, the 'direct semantic connection' rule uses the word 'semantic' in the wrong context. Possible alternatives were canvassed, such as 'closely similar', 'substantially identical' or 'generally known by'. It was suggested that the policy could give examples of commonly acceptable derivations, eg. acronyms and abbreviations using the first letter of each word.

  The Panel conceded that it is probably not possible to formulate a derivation rule that can be applied automatically or objectively by multiple registrars. It was suggested that there may need to be a central policy check for domain names that are not exactly derived from the name on which the domain name licence is based (eg. company name, trade mark etc).

• Proposal 4.1.4 - conflict between domain names and trade marks
  Respondents were generally in favour of the proposal that domain name licence applicants acknowledge that their entitlement to a domain name may be challenged by someone with trade mark rights in the name. The Panel gave consideration to comments that the proposal be strengthened by requiring domain name licence applicants to give a warranty that their name does not infringe trade mark rights, however it was considered that this was more a matter for auDA and its oversight of registrar conduct.

  The Panel agreed that the proposal should be amended to cover any 'superior legal rights', not just existing trade mark rights.

• Proposal 4.1.5 - renewal period for domain name licences
  Respondents were generally in favour of imposing a renewal period on all domain name licences. However, there was no clear view as to the appropriate length of the licence.

  The Panel agreed that it is not necessarily appropriate to impose the same licence period for all 2LDs. For example, in the closed 2LDs, entities are relatively stable so there is less need to require them to regularly provide evidence of continued eligibility to hold the domain name licence. The Panel also noted that, in future, domain name licence periods may be a point of competitive difference between registrars.

  There was some discussion of the need to ensure that domain name licence holders maintain accurate WHOIS data, and it was agreed that while this could be linked to the renewal process, they are really two separate issues.

  The Panel agreed that the proposal should be amended to state that the domain name licence period would be specified by auDA, in consultation with 2LD administrators. However, the Panel recommended that a period of not more than 2 years be specified for the open 2LDs com.au, net.au and org.au.

• Proposals 4.2.1 and 4.2.2 - generic, geographic and objectionable names
  The Panel noted the large number of comments on these proposals. There appeared to be unanimous support for maintaining the restriction on objectionable domain names. However, respondents were generally in favour of lifting the restriction on generic and geographic names, especially the latter, provided this was done in a fair and orderly manner.

  The Panel re-asserted its belief that generic names bestow an unfair competitive advantage on their holders, and are misleading for Internet users who expect to be able to use the DNS as a directory service. On the other hand, the Panel acknowledged that many respondents believed generic names to be intrinsically valuable, in which case it would be in the public interest to capture that value by relaxing the policy.

  The Panel felt that a more rigorous public benefits analysis of generic names was warranted. In the meantime, the Panel felt it would be premature to recommend a change to the current policy.

  On the question of geographic domain names, the Panel felt that the public interest case for lifting the restriction was more persuasive. The Panel agreed to consider the options put forward for allocating geographic domain names.

• Proposal 4.3.1 - introduction of new 2LDs
  The Panel noted that the comments on this proposal identified a number of needs that are not being met by the existing .au 2LDs, eg. directories, open slather, indigenous people, individuals, hobbies.

  The Panel agreed that, while it could suggest a number of possible new 2LDs, it is more important to recommend a process by which new 2LDs could be selected.

  The Panel noted that this issue is also relevant for the Competition Panel, in terms of providing substitutability between 2LDs.

• Proposal 4.4.2 - country codes and gTLDs as domain names
  Submissions on this proposal were overwhelmingly against prohibiting 2 character domain names and gTLDs as domain names, on the basis that they are currently permitted under existing policy.

  The Panel agreed that the prohibition should be limited to 2 character domain names that are the same as ccTLDs. Domain name licence applicants should be advised that if they license a 2 character domain name that is subsequently allocated as a ccTLD, then the licence may be cancelled.

3 Other issues raised in public submissions
The Panel discussed some other issues raised in public submissions that were not included in the report:

• Flat DNS structure (eg. bhp.au). The Panel considered that it would be too difficult to introduce a flat structure in .au, given the historical development of the domain space and the existing 2LD hierarchy.
• Australian connection. The Panel agreed that it has assumed that domain name holders would need to demonstrate a connection with Australia of some sort, and that this assumption should be explicitly stated in the next report. The Panel should investigate the practice of other ccTLDs in this regard.
• Marketing of .au domain space. It was agreed that this is not part of the Panel's Terms of Reference, but rather a matter for auDA. However, it was considered that the Panel's views on the integrity and value of the .au domain space could be used by auDA as promotional material.
• Policy and costs of operation. The Panel noted the relationship between policy and cost (ie. the more complex the policy, the higher the cost of performing policy compliance checks). However, the lack of evidence of the true cost of domain name registration makes it difficult for the Panel to quantify the impact of policy changes.

4 Second public consultation report - structure and timing
The aim is to issue a second public consultation report in February 2001. The Panel meeting scheduled for the end of February will be deferred to early March to accommodate the second round of public consultation.

5 WIPO Second Domain Name Process RFC
Panel members noted that WIPO has invited public comment on a number of issues regarding conflict between IP rights and domain names. Although the Panel's public consultation report does not strictly address the RFC, it was agreed that it should be provided to WIPO for information.

4 Coordination with Competition Model Advisory Panel
Panel members were advised that there will be a meeting in January involving the three Panel chairs, four common Panel members and the secretariat, to discuss areas of overlap and possible coordination mechanisms.

Last Updated: 07/03/2006 09:16