From: Bruce Tonkin Sent: Thursday, 22 March 2001 5:08 PM To: 'jo.lim@auda.org.au' Subject: Response to 2nd Names Panel report To: Ms Jo Lim Secretariat auDA Name Policy Advisory Panel Melbourne IT response to the Second Public Consultation Report of the auDA Name Policy Advisory Panel, February 2001 Executive Summary ***************** As stated in Melbourne IT's previous submission to the auDA Name Policy Advisory Panel, Melbourne IT supports the removal of the connection rule between an entity and the domain name. The use of domain names has evolved as the Internet has evolved. Originally domain names primarily referred to organisations and indicated the hierarchy within an organisation (e.g monash.edu.au, ecse.monash.edu.au, infotech.monash.edu.au). As the Internet has moved from a medium for supporting email contact between people in organisations, to a platform for ecommerce, domain names are increasingly being used to refer to products and services which often have no connection with the name of the organisation. For example yellowpages.com.au and bigpond.com.au are not directly connected to the name Telstra Corporation Limited. Thus domain names are becoming more analogous to trademarks than to company names. This change in use of domain name has been acknowledged by the Names Panel by widening the eligibility criteria to include trademarks. The connection rule is easily overcome by a business registering a new business name or trademark (although a business name is cheaper) SOLELY for the purpose of obtaining a domain name. The problems of cyber-squatting are best dealt with in the proposed new eligibility criteria (which prevent cyber- squatting), and through the introduction of an efficient dispute resolution process. The provision of a central lookup service (e.g based on the AUNIC repository http://www.aunic.net) will ensure that consumers can identify the organisation behind any domain name. Thus Melbourne IT continues to recommend that the connection rule be removed. If the connection rule is maintained, Melbourne IT recommends that a simple automatable rule be applied. For example an exact match with the company name or trademark string, or a match derived from removing characters at the beginning and/or end of a company name or trademark (e.g name.com.au, derived from the company name "xxxxxname abcd wxyz"). In most cases the application of anything other than an exact match will be open to abuse and be effectively equivalent to having no connection rule, because once again organisations will register a business name or trademark to get around the rules. As stated in Melbourne IT's previous submission to the auDA Name Policy Advisory Panel, Melbourne IT supports the removal of the restriction on registering generic names within a 2LD such as com.au. The concerns over a company gaining undue advantage through the licensing of a generic domain name (such as shopping.com) are unfounded. There have been no restrictions on generic names in ".com", and very few of the successful websites have generic names. The prohibition on cyber-squatting as part of the proposed eligibility criteria should prevent people profiting from the auction of a generic name to the highest bidder. Most companies want to establish a unique brand for a new product. For example when buying washing powder, companies do not market washing powder under the name "washing powder" as the brand is not protectable under trademark legislation and consumers do not remember the "brand". The burden on registrars of determining and explaining to customers what is and is not a generic name, which results in extra cost to the consumer, outweighs any advantages of restricting generic names. Thus Melbourne IT continues to recommend that the restriction on generic names within a 2LD be removed. As stated in Melbourne IT's previous submission to the auDA Name Policy Advisory Panel, Melbourne IT supports the removal of the restriction on registering geographic names within a 2LD such as com.au. The concerns over a company gaining undue advantage through the licensing of a generic domain name (such as melbourne.com) are unfounded. There have been no restrictions on geographic names in ".com", and very few of the successful websites have geographic names. The prohibition on cyber-squatting as part of the proposed eligibility criteria should prevent people profiting from the auction of a geographic name to the highest bidder. Many geographic names are derived from the names of individuals, just as company names are often derived from the names of individuals. This is particularly true for small businesses (e.g Arthurs Seat Upholstery). Many of these geographic names relate to little known suburbs and country towns in areas of Australia well away from the primary location of the business seeking a domain name. The burden on registrars of explaining to customers that the name they want matches a geographic name that they didn't know existed, which results in extra cost to the consumer, outweighs any advantages of restricting geographic names. Thus Melbourne IT continues to recommend that the restriction on geographic names within a 2LD be removed. Melbourne IT does support the use of new 2LDs for geographic names where each name is under the management of the local government or council. For example melbourne.city.au, or whitehorse.council.au. Melbourne IT does support the use of new 2LDs to operate as REGISTRIES under generic names, with policy under the control of a sponsoring organisation. For example, the Australian Medical Association could sponsor the operation of a "doctor.au" registry. Only medical professionals passing a strict eligibility test would qualify to register (e.g name.doctor.au). auDA should develop some general policies for the types of new 2LDs that would be allowed, and invite organisations to propose suitable new 2LDs along with the policies for managing them. This is similar to the approach adopted by Robert Elz for domains within ".id.au". A suitable approach would be to follow the ICANN model, and start with a limited number of diverse new 2LDs as a trial. These could include relatively open names like ".biz.au" that would compete with ".com.au", geographic names like "melbourne.au" for organisations based in Melbourne, generic names like "doctor.au" or "lawyer.au" , and a space for individuals "name.au". auDA could leverage off the enormous global marketing efforts being used to kick-off the new TLDs (ie .info, .biz, .name, .coop, .museum, .aero, .pro) to trial equivalent names within ".au". Specific comments on the auDA Name Panel recommendations follows: Recommendation 3.1 (Domain Name Licence Eligibility) ***************************************************** Melbourne IT agrees with Recommendation 3.1, and believes that the new provisions should make it possible to open up registration for generic and geographic names at the 2LD level. Melbourne IT would like to note that Schedule A lists 2LDs under the open category that are not yet open. Individuals cannot register names directly in ".id.au"; they must register names at the third level in one of nine 3LDs such as dropbear.id.au, ironbark.id.au, warratah.id.au, wattle.id.au (e.g joesmith.wattle.id.au). Melbourne IT recommends that individuals be able to register directly at ".id.au" (e.g joesmith.id.au) as Schedule A implies. Table B is a bit confusing, but it is assumed that criteria "iv" and "v" would be sufficient to register a name in ".conf.au", ".info.au", and ".org.au". Melbourne IT also suggests that the Name Panel give consideration to policies for transfer of ownership of a domain name. For example a partnership may register a domain name based on the name of the partnership. At a later time, the partnership dissolves and one of the partners continues to operate with a different business name, but wishes to retain the domain name that has an established brand in the market. This requires transfer of ownership of the domain name, but the domain name may no longer meet some of the policy criteria (especially related to the connection rule in recommendation 4.1.1). In regard to the status of trademark applications at the time of renewal, it should be noted that trademark applications can take beyond 12 months. If the domain name licence renewal period is as frequent as 12 months, a trademark application may still be pending at time of renewal. Recommendation 4.1 (Domain Name Allocation Policy - Connection rule) ************************************************** Melbourne IT is opposed to recommendation 4.1. The use of domain names has evolved as the Internet has evolved. Originally domain names primarily referred to organisations and indicated the hierarchy within an organisation (e.g monash.edu.au, ecse.monash.edu.au, infotech.monash.edu.au). As the Internet has moved from a medium for supporting email contact between people in organisations, to a platform for ecommerce, domain names are increasingly being used to refer to products and services which often have no connection with the name of the organisation. For example yellowpages.com.au and bigpond.com.au are not directly connected to the name Telstra Corporation Limited. Thus domain names are becoming more analogous to trademarks than to company names. This change in use of domain name has been acknowledged by the Names Panel by widening the eligibility criteria to include trademarks. The connection rule is easily overcome by a business registering a new business name or trademark (although a business name is cheaper) SOLELY for the purpose of obtaining a domain name. The problems of cyber-squatting are best dealt with in the proposed new eligibility criteria (which prevent cyber-squatting), and through the introduction of an efficient dispute resolution process. The provision of a central lookup service (e.g based on the AUNIC repository http://www.aunic.net) will ensure that consumers can identify the organisation behind any domain name. Thus Melbourne IT continues to recommend that the connection rule be removed. If the connection rule is maintained, Melbourne IT recommends that a simple automatable rule be applied (e.g recommendation 4.1.2 (a)). For example an exact match with the company name or trademark string, or a match derived from removing characters at the beginning and/or end of a company name or trademark (e.g name.com.au, derived from the company name "xxxxxname abcd wxyz"). In most cases the application of anything other than an exact match will be open to abuse and be effectively equivalent to having no connection rule, because once again organisations will register a business name or trademark to get around the rules. Melbourne IT is strongly opposed to recommendation 4.1.2 (b) in that it is unworkable, especially the term "is otherwise derived" and a name by which the licence holder is "generally known". It would be difficult to verify a name as generally known. If the connection rule is maintained it would be best to stick with the method described in the paragraph above. Where an organisation chooses to use a name that is not directly derived from their current business name, then they should apply for either a new business name or trademark to suit their needs. This will have the net affect of reducing the cost of domain name registration, while taking advantage of the existing subjective procedures in the business name and trademark offices. It does not make sense to duplicate these subjective processes in the domain name business. Recommendation 4.2.1 (domain name beginning with a number) ********************************************************** Melbourne IT agrees with recommendation 4.2.1 Recommendation 4.2.2 (two character domain names) ************************************************* Melbourne IT views the prohibition on country code top level domains (ccTLDs) within .au, and not a prohibition on generic top level domains as inconsistent. If recommendation 4.2.2 is accepted then there should be a new recommendation 4.2.3 as follows: "Domain names that match existing or new generic top level domains (gTLDs) should not be allowed." Note new gTLDs now have between three (e.g .biz) and four (e.g .info) characters. Recommendation 4.3 (Generic and Geographic Names) ************************************************* Melbourne IT is opposed to recommendation 4.3. Melbourne IT supports the removal of the restriction on registering generic names within a 2LD such as com.au. The concerns over a company gaining undue commercial advantage through the licensing of a generic domain name (such as shopping.com) are unfounded. There have been no restrictions on generic names in ".com", and very few of the successful websites have generic names. The prohibition on cyber-squatting as part of the proposed eligibility criteria should prevent people profiting from the auction of a generic name to the highest bidder. Most companies want to establish a unique brand for a new product. For example when buying washing powder, companies do not market washing powder under the name "washing powder" as the brand is not protectable under trademark legislation and consumers do not remember the "brand". The burden on registrars of determining and explaining to customers what is and is not a generic name, which results in extra cost to the consumer, outweighs any advantages of restricting generic names. Thus Melbourne IT continues to recommend that the restriction on generic names within a 2LD be removed. Melbourne IT supports the removal of the restriction on registering geographic names within a 2LD such as com.au. The concerns over a company gaining undue advantage through the licensing of a generic domain name (such as melbourne.com) are unfounded. There have been no restrictions on geographic names in ".com", and very few of the successful websites have geographic names. The prohibition on cyber-squatting as part of the proposed eligibility criteria should prevent people profiting from the auction of a geographic name to the highest bidder. Many geographic names are derived from the names of individuals, just as company names are often derived from the names of individuals. This is particularly true for small businesses (e.g Arthurs Seat Upholstery). Many of these geographic names relate to little known suburbs and country towns in areas of Australia well away from the primary location of the business seeking a domain name. The burden on registrars of explaining to customers that the name they want matches a geographic name that they didn't know existed, which results in extra cost to the consumer, outweighs any advantages of restricting geographic names. Thus Melbourne IT continues to recommend that the restriction on geographic names within a 2LD be removed. Melbourne IT does support the use of new 2LDs for geographic names where each name is under the management of the local government or council. For example melbourne.city.au, or whitehorse.council.au. Recommendation 4.3.1, 4.3.2 *************************** The most appropriate licence allocation method that has been used in most domains successfully around the world is first-come, first served. The eligibility criteria and dispute resolution procedures should ensure that the names will be used appropriately. To cope with an initial rush on new names released to the market, a lottery style random sort approach can be used where people pre-register for a name, and the registrant is randomly selected (this approach is being used for registering names in most of the new gTLDs and is well documented). Auction approaches are expensive to administer and effectively amount to taxation (e.g see experience with spectrum auctions). Only the largest organisations benefit in an auction approach, rather than innovative entrepreneurs. Melbourne IT accepts the approach of using a reserved list for any domain names that cannot be registered is acceptable. This approach is normally used for objectionable names. Recommendation 4.3.1 (c) is unworkable. In a competitive environment, registrars or registry operators may not refer names to auDA for consideration. It is left to subjective judgement by registrars to refer names for consideration, and will lead to inconsistent treatment of domain name registrants. An initial reserved list should be constructed, and a regular review (e.g monthly) of new generic, geographic, or objectionable words to either add or remove should be conducted. Anyone should be able to make submissions to this review panel. Note maintaining the reserved lists will be at considerable cost to auDA in terms of administrative procedures. Registrars should only make decisions based on the reserved list to ensure fair treatment of all registrants, and appropriate competition between registrars. A reserved list approach is also fully automatable as a check at the Registry, before accepting a new entry to the registry database. Recommendation 4.3.3 (objectionable words) ****************************************** Melbourne IT agrees with recommendation 4.3.3 regarding using a reserved list of objectionable words. Recommendation 5.1 (introduction of new second level domains) ************************************************************* Melbourne IT strongly supports recommendation 5.1. Melbourne IT supports the use of new 2LDs for geographic names where each name is under the management of the local government or council. For example melbourne.city.au, or whitehorse.council.au. Melbourne IT supports the use of new 2LDs to operate as REGISTRIES under generic names, with policy under the control of a sponsoring organisation. For example, the Australian Medical Association could sponsor the operation of a "doctor.au" registry. Only medical professionals passing a strict eligibility test would qualify to register (e.g name.doctor.au). auDA should develop some general policies for the types of new 2LDs that would be allowed, and invite organisations to propose suitable new 2LDs along with the policies for managing them. This is similar to the approach adopted by Robert Elz for domains within ".id.au". A suitable approach would be to follow the ICANN model, and start with a limited number of diverse new 2LDs as a trial (as recommended in recommendation 5.1.1). These could include relatively open names like ".biz.au" that would compete with ".com.au", geographic names like "melbourne.au" for organisations based in Melbourne, generic names like "doctor.au" or "lawyer.au" , and a space for individuals "name.au". auDA could leverage off the enormous global marketing efforts being used to kick-off the new TLDs (ie .info, .biz, .name, .coop, .museum, .aero, .pro) to trial equivalent names within ".au". auDA should firstly review the use of the current 2LDs. Many of these existing domains (e.g ".id.au" and ".info.au") could be operated more effectively if put on a commercial basis like ".com.au", supported with appropriate marketing. It may be appropriate to select some new generic 2LDs to match the new gTLDs so that the ".au" space remains consistent with the structure of the global name space. This also will provide more consumer choice and allow multiple registry operators to operate effectively in ".au". The operation of these new registries could be put out to tender. In addition auDA could consider proposals for new TLDs from sponsoring organisations for specific purposes (e.g doctor.au as above). These sponsoring organisations could select a registry operator assuming that 2LD registries would be open to competition. Melbourne IT supports all the new TLDs as suggested in the name panels discussion of 5.1.2, and believes that an open competitive model at the registry level will encourage the effective use of these new 2LDs. Recommendation 6.1(Retrospective effects of changes) **************************************** Melbourne IT agrees with recommendation 6.1 that states that policies changes should not have retrospective effect. The wording of the last phrase however could cause confusion Melbourne IT assumes that if an existing licence (e.g travel.com.au) is renewed before the expiry date (or during any grace period after the expiry date), then they will be able to retain their domain name. auDA should clarify acceptable practice for a grace period. Normally after the domain name expiry date is passed, the domain name is removed from the zone file which will prevent people reaching a website identified by the domain name. This often causes the domain name owner to promptly renew their domain name. This feature accounts for people that have changed their address and contact details without informing the registry. After a grace period, the domain name is then permanently removed from the registry. If a licence is not renewed and the domain name is removed from the registry, then the same name may not be registered unless it passes the current policies. Recommendation 6.2 (dispute resolution) *************************************** Melbourne IT agrees with recommendation 6.2, and restates the need to take into account the best practices of the ICANN UDRP processes and the telecommunications industry processes in Australia.