From: Gerry Jaworski 
Sent: Monday, 10 April 2006 5:15 PM
To: jo.lim@auda.org.au
Subject: auda name policy

Dear Jo

I note that you are considering the monetisation of the "close and substantial connection rule" 
and seeking input from the public. I wish to make the following comments/observations:

The problem the auda has in monetisation appears to be a subset of a broader issue, being that 
the auda policy on name eligibility is not clear.  For example, the criteria and/or objectives 
underlying the policy (assuming there are any) are not set out in the policy guidance documents 
such as 2005-01.

Possibly as a result of the above, the rule "close and substantial connection" is most likely 
misleading in the context that it has been used in the auda policy documents.

For example, In the public announcement and Issues Paper seeking these comments, it is stated 
that the rule was intended to provide a "LIMITED" degree of flexibility for registrants that are 
connected to a domain name in SOME way, "for example the name of A product they sell or A service 
they provide."

Apart from using the word "some" which itself conflicts with the word "limited", that description 
would most likely have prevented the current (and future) problems if it was an accurate summary 
of the rule as applied by auda policy.  

Unfortunately, as the guidance in auda policy 2005-2 verifies, the expression provides practically 
unlimited opportunities for registrants to register a domain name that is not derived from its own 
name.

The auda has applied the rule as if the words "close and substantial" did not exist.  In practice, 
it is sufficient that a "connection" exists regardless of whether it is close or substantial.  For 
example, say a local service station supplies tyres, it would be permitted to use the domain name 
"tyres.com.au" since the auda regards this as satisfying the close and substantial rule (see Example 
1 in Table C in policy 2005-02).  This means that under auda policy, a business can be closely and 
substantially connected to a domain name, notwithstanding that every other business in the industry 
could have that same "close and substantial connection".

Even worse, under current auda policy, if that local service station reserved the domain name and 
made no use of it, it would still satisfy the continuing auda eligibility rules notwithstanding that 
a dedicated tyre business subsequently forms and trades under the name Tyres Ltd. Thus the tyre 
business could use the name tyres.net.au whilst the service station could still then implement its 
tyres.com.au domain name under auda policy (leaving aside legal considerations).

As a consequence, the expression/rule, as applied by auda, is practically useless as a means of 
qualifying name eligibility and hence will give rise to many problems, such as monetisation.

On this basis, the auda should seriously consider reviewing its use of the expression "close and 
substantial connection" and either delete the requirement as superfluous; modify the words to reflect 
the way in which the rule is applied or preferably apply it in the manner that seems originally 
intended.

I would argue as follows:

1. the .com.au and .net.au domains are clearly provided for commercial purposes.
2. the whole purpose of names in a commercial context is to allow a business to trade using a name 
which they would like their customers to associate with their business
3. if a business desires a domain name not clearly derived from its legal and/or registered trade name, 
then it must demonstrate how and why that name associates its business (as distinct from some other 
business) with its customers (ie this prevents the local service station using tyres.com.au since every 
other service station would have the same or similar "close and substantial connection", for want of a 
better term)
4. any domain name not clearly derived from the applicants legal and/or business name must not be 
allocated if it is derived from someone else's legal and/or business name
5. if the business is a listing or directory or portal service and desires a generic name such as 
computersoftware.com.au, then subject to (4), it must warrant that the domain name is used for such a 
service.

In short, auda policy on domain name eligibility should reflect and facilitate the application of names 
in the general business context, and in particular should not provide a means through which the intended 
use of business names can be subverted.  Moreover, the auda should clearly state the criteria used as a 
basis for formulating policy.  This will solve many problems with the existing rule, including the issue 
of monetisation.

Regards
Gerald Jaworski
Director
Accounting Software Pty Limited