From: bret on behalf of Bret Busby Sent: Friday, 16 February 2001 7:01 PM To: jo.lim@auda.org.au Subject: Submission regarding Name Panel's second public consultation report Hello. I have the following concrens, regarding the above report, as published at http://www.auda.org.au/panel/name/papers/publicreport2.html 1. From the preamble; "Eligibility. To answer the very fundamental question - who is eligible to obtain an Australian domain name? - a single set of eligibility criteria has been proposed, to apply (in varying degrees) across all 2LDs. These criteria include trade marks, for the first time, which will allow domain names to be based on product names as well as entity names." >From 3.1.3a "a. The domain name licence applicant must be an Australian entity. [CURRENT POLICY CLARIFIED] Although not explicitly stated in the November 2000 report, it is the Panel?s intention to continue the requirement for a .au domain name to be licensed to an Australian entity. An ?Australian entity? would include, for example, a business registered in Australia, an Australian citizen or resident, or other entity specified for the purposes of the relevant 2LD (see Schedule A). It would also include an owner of an Australian Registered Trade Mark, although the owner might in fact be a foreign business or individual." >From 3.1.3d "d. A bona fide intention to use the domain name licence for the purpose envisaged by the relevant 2LD, should be demonstrated in accordance with the rules applicable in that 2LD. Schedule A lists the eligibility criteria for the current 2LDs. [NEW POLICY] The Panel notes that there was general support for a list of eligibility criteria. There was general support in submissions for the Panel?s proposal to extend domain name licence eligibility criteria to include Australian Registered Trade Marks in the commercial 2LDs, com.au and net.au. An effect of this recommended change is that in commercial 2LDs, a product name may be the basis for a domain name." >From 3.1.3f "f. The domain name licence applicant must acknowledge at the time of application that their entitlement to a domain name may be challenged by a third party with superior legal rights in the words forming the domain name. [NEW POLICY] There was support for the Panel?s proposal that the onus to ensure that the licensing of a domain name does not contravene any third party?s rights, such as trade mark rights, should be left in the hands of the domain name licence applicant. The Panel considers that it is not necessary to strengthen the proposal with a requirement that domain name licence applicants provide a more formal warranty that the domain name does not infringe trade mark rights. In non-commercial 2LDs, trade marks are unlikely to confer superior legal rights, since trade marks by their nature infer a commercial function." >From 3.1.3g "g. The domain name licence applicant must agree to be bound by any Dispute Resolution Procedure specified by auDA. [NEW POLICY] In its November 2000 report, the Panel outlined the requirements for a dispute resolution procedure, modeled on the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Dispute Resolution Procedure (UDRP). The Panel notes that there was overwhelming support for the adoption of an Australian version of the UDRP at the same time as (or ahead of) any changes to domain name policy. The Panel considers that dispute resolution procedures should apply to all open 2LDs, and to closed 2LDs on an opt-in basis, with appropriate modifications if necessary. An Australian UDRP should be devised and implemented by auDA before or at the same time as any changes to domain name policy." >From Schedule A "The Panel recommends that the same set of eligibility criteria should be applied to all open 2LDs: i. a decision by a court or other accredited tribunal; ii. an Australian Registered Trade Mark, or Trade Mark application; iii. proof of identity (eg. Australian passport, Australian drivers' licence); iv. an Australian Business Number; v. a Business Name or Company Number registered in Australia; vi. other appropriate evidence supported by a statutory declaration and proof of identity of the applicant.[1] " The proposals involed, do not make clear, but imply, that the registration of a trademark, shall take precedence over the registration of a business name, and, also, that domain name registrants shall be subject to whatever resolution policies the AuDA decides to implement at a particular time. I am a member of the ICANN DNSO working group, and, a concern that has been raised there, by a number of people, is the incidence of legitimate domain name holders, having their domain names taken away, by trademark holders, as the resgistration of a trademark is given greater precedence than the registration of a business name. As an example, I have a business name, that has been registered, for 6 years. I also have an ABN for the business. I therefore have a legitimate claim to a domain name with that business name, in the .com.au domain (and, in the .com domain). Under the proposed regulations, I could register that domain name, use the domain name for trading, and, make the domain name a business asset. Then, along comes some shyster, who sees that I have the domain name, and, that I am successfully using the domian name, and, the shyster then registers, or, applies for registration of, a trademark, the same as my registered business name. My business is a small, state-registered business, and, the business is not big enough to fight a trademark application, or, a domain name dispute. Therefore, all the benefits of the work done, in building up the business with the domain name, and, in increasing the value of the asset that is the domain name, are arbitrarily taken away from my business, and, given to the shyster, because trademark registration has higher precedence than business registration. This is a grossly unfair situation, and, some of the people in the ICANN DNSO review working group, are apparently victims of this policy, in the gTLD domain level. To me, the only fair policy to implement here, is, for anyone who can show that they have a just entitlement to a domain name, be allowed to register the domain name, and, that the person have the right to the domain name, on a first-come, first-served basis, unless it can be shown that, at the time of registration, the person who registers the domain name, does not have a legitimate claim to it. The issue of the "superior legal rights", is extremely detrimental, to the whole concept of domain name registration, and, can cause never-ending, and, ever-increasing litigations, making the whole domain name registration concept follow the law of the jungle; only the strongest and the fittest survive, with no regard for merit. It makes it all the same as the USA gunfighter of the wild west; once they have established themselves, they are forever fighting off challengers, and, have no peace until death. Thus, the proposals, as stated, make it not worthwhile, to register a domain name, in the .au ccTLD. 2. The proposals, with the "licensing period" concept, in the context of everything else, mean that a person, or, entity, that registers a domain name, has no guarantee of renewal, even if the person has a legitimate claim to a domain name. Thus, in the context of the concerns that I raised above, the domain name registrant may lose the registration, if someone else comes along and lays claim to the domain name, at renewal time. No guarantee of renewal is given, in the proposed policy, and, it is implicitly made clear, that, at the end of each renewal period, the domain name registrant has to reapply, subject to challenges by any other party, for the registration of the domain name. Thus, once again, the domain name issue concept in Australia, is the same as the laws of the wild. As, in the wild, at every mating season, the males generally have to compete, and, fight, for the right to mate, the proposed policies indicate that, whenever the renewal time for a domain name registration is due, the domain name is fair game for anyone, with no guarantees of renewal, for the existing domain name registrant. Thus, in the absence of any guaranteed right of renewal of a domain name registration, and, given the nature of the eligibility criteria, with "superior legal rights" being used to determine disputes, I contend that the proposed policies fail badly, as the proposed policies make the domain name registration in the .au ccTLD, a savage and uncivilised free-for-all, with shysters and the richest and most powerful being the only victors, which is one of the major concerns, in the Internet community, regarding the ICANN UDRP, which is regarded as worthless, by the members of the ICANN DNSO review working group. Also, in terms of domain name registrants being subject to whatever resolution policies the AuDA imposes at its pleasure, without clearly defined and specified policies and methods being explicitly stated, it is like saying "Just close your eyes, and, step out over the cliff. Nothing will go wrong.". A person has only to examine the gross injustice, and, the futility, of the ICANN UDRP, to see examples of this. For references, see The wg-review@dnso.org list. Archives at http://www.dnso.org/archives.html Thus, the proposed policies, make registering a domain name in the .au ccTLD, a wasteful and risky exercise, apart from, serving shysters, and, the rich and powerful (for those who are not already shysters). -- Bret Busby ...................................... "So once you do know what the question actually is, you'll know what the answer means." - Deep Thought, Chapter 28 of The Hitchhiker's Guide to the Galaxy - Douglas Adams, 1988 ......................................