From: David Keegel Sent: Tuesday, 27 March 2001 5:02 PM To: Jo Lim Subject: Name Panel submission Trade Marks The main purpose of com.au should continue to be for Australian commercial organisations/entities. It should not be changed to allow products and services to be registered in com.au, as trade mark interests are requesting.

If it is necessary for products and services to have their own domain names, then this could be acheived by creating a new 2LD (or two), which are designed for products and services (in much the same way that conf.au is designed for conferences). Or a tm.au specifically for trade marks. The suggestion that the only product and service names which can be registered as .au domain names should be those with registered trade marks seems biased towards big business. Many small and medium businesses sell products and services without having registered trade marks. Why should they be discriminated against? If registered trade marks on products/services are used as a basis for registering domain names, this should only be allowed for approved trade marks. To allow pending trade marks introduces more complexity and preferential treatment for (pending) trade mark holders. On recommendation 4.3, it is very important that the status quo remains until such time as a detailed transition plan has been developed and opened for public consultation. Otherwise we risk creating many more anomalies in the .au DNS than exist today, if the policy needs to be tightened in some respect in future. (Deregulation is a one-way process.) And of course, any changes which could involve a "land rush" should not proceed before registrar competition (unless special arrangements are made to avoid windfall profits by monopoly registrars). Dispute Resolution Dispute resolution procedures should be matched to the eligibilty policy of the relevant 2LD. So for instance in com.au, appropriate tests might be something like: -That the complainant is an Australian commercial entity -That the license holder is not an Australian commercial entity There is no reason for trade marks to be relevant to alternative dispute resolution unless they are eligibility criteria for that specific 2LD. If trade mark holders wish to enforce their IP rights they are of course free to do so in Australian Courts, who are in a much better position to judge trade mark issues than DNS people. id.au The Panel report does not address the structure of the id.au domain. Does this mean that the Panel is happy with the current structure? If not, an alternative structure which could be considered is to have registration allowed at the 3LD level (eg: within a new id.au 2LD registry) while leaving the existing 3LD registries in place. The panel may want to discuss the pros and cons with the id.au delegate and the *.id.au delegates. And also with the competition panel, since it could lead to a reduction in competition, if not properly handled. In regard to dispute resolution, the US Government in its 1998 White Paper (statement of policy) on DNS issues said: Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court. The "new corporation" was the yet-to-be-created ICANN. The message here is that we don't need to design Alternative Dispute Resolution (ADR) policies for a wide and comprehensive range of cases - we have Courts for handling disputes. ADR only needs to handle the most clear cut and common disputes. Other disputes can be dealt with in Courts whose experience in handling disputes dates back many years before the Internet existed. There is no need for auDA to reinvent this wheel. Systems such as UDRP are deliberately designed as alternatives, which the parties may choose to use in preference to going to Court. It would be appropriate for an LDRP (Local Dispute Resolution Policy) for .au to also be an alternative, rather than mandatory. Of course, the LDRP may make clear the advantages for the parties of choosing ADR. If the scope of ADR could include review of policies, decisions and actions of auDA, then the dispute resolution should be done outside of auDA, to ensure independence. Please note that the Nominet UK proposed LDRP (while similar to the UDRP in structure) does not specifically single out trade marks as having a special place in the dispute resolution policy.