From: Raoul Sent: Friday, 8 December 2000 4:20 PM To: jo.lim@auda.org.au Subject: Response to auDA's "Review of Policies in .au Second Level Domains" Nitrogen Interactive Pty Ltd's response to auDA's "Review of Policies in .au Second Level Domains" Public Consultation Report. Our comments follow the Report's excerpts: ********************************************************************** 4.1.1 Eligibility to apply for a domain name licence a. The proposed use of the domain name licence must fit the purpose envisaged by the relevant 2LD - refer to Schedule A. b. There must be a declaration of a bona fide intention to use the domain name licence for the purpose envisaged by the relevant 2LD. c. 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 - refer to Schedule A. d. It is not considered bona fide to license a domain name for the sole purpose of selling it. ********************************************************************** Nitrogen Interactive supports recommendation 4.1.1., however: Schedule A recommends that an Australian Registered Trademark or Trademark application be accepted as one of the eligibility rules. Nitrogen Interactive is strongly opposed to the use of registered trademarks as an eligibility rule for the following reasons: a) Trademarks are not unique. Unlike registered business or company names, there is no requirement for uniqueness in a registered trademark. There are 32 classes that a trademark can be registered under. For example there theoretically could be up to 32 registered trademarks of the word "Acme", each registered under a different class, and each with a different owner. Who would be the rightful domain registrant? b) Unfair advantage to registered trademarks over those not registered. Trademarks exist without being registered. A trademark comes into effect when a mark is used to trade. Trademarks are registered to protect the mark. Using this eligibility rule would give an unfair advantage to those businesses who have been able to afford the cost to secure the registration their trademarks over those that have not been able to afford the cost. There are enough alternatives for eligibility that this rule should not used. ********************************************************************** 4.1.2 One domain name licence per entity The current rule of only one domain name licence per entity be removed. ********************************************************************** Nitrogen Interactive strongly supports recommendation 4.1.2. We also recommend there be no limit on the number of domains permitted to be registered by a single entity, so long as the requirements in the policy are met. ********************************************************************** 4.1.3 Direct derivation of a domain name from an entity name a. There must be a connection between the domain name and the domain name licence holder. b. A connection between the domain name and the name of the domain name licence holder can be demonstrated by: i. an exact match between the domain name and the name or trade mark of the domain name licence holder; or ii. a direct semantic connection between the domain name and the name of the domain name licence holder. ********************************************************************** Nitrogen Interactive is strongly opposed to recommendation 4.1.3. In it's present form, this rule causes the most confusion for first time applicants. However, once understood, it is easily circumvented by the registering of an appropriate business name to suit the rule. Recommendation 4.1.3 however, would cause even more confusion and cause most first time applicants to reach for a dictionary and look up the word "semantic". We recommend the rules be in plain english. We recommend that a commercial entity be permitted to register any name it chooses so long as the requirements in the policy are met. We also recommend that domain licences be able to be transferred between entities. ********************************************************************** 4.1.4 Conflict between domain names and trade marks Domain name licence applicants should acknowledge at the time of application that their entitlement to a domain name may be challenged by a third party with existing trade mark rights in the domain name. ********************************************************************** Nitrogen Interactive opposes recommendation 4.1.4. Other forms of name based registration such as business name registration require no such acknowledgment from the applicant. We recommend that similar minimal requirements also be applied to domain name registration. ********************************************************************** 4.1.5 Renewal period for domain name licences All domain name licences should be subject to a specified renewal period, and domain name licence holders should be required to provide evidence of continued eligibility to hold the licence at the time of renewal. ********************************************************************** Nitrogen Interactive supports recommendation 4.1.5. however, we oppose the requirement that licence holders provide evidence of continued eligibility. Such a requirement would impose a heavy burden in both terms of cost and of time on the licence holder and the registrar. ********************************************************************** 4.2.1 Restriction on licensing of generic, geographic or objectionable names Retain the current policy restricting the licensing of generic, geographic and objectionable domain names and apply it across all open 2LDs. Adopt the following 'reserved list' approach: a. clear definition of 'generic', 'geographic' and 'objectionable' will be developed with reference to appropriate sources (eg. Yellow Pages Index); b. domain names that have to date been rejected by the current registrars for being generic, geographic or objectionable will be placed on a reserved list; c. new applications for domain names that may be considered generic, geographic or objectionable may be referred to auDA; d. if the domain name is determined by auDA (according to the definition) to be generic, geographic or objectionable, then it will be added to the reserved list; e. applicants can challenge domain names on the reserved list, and auDA will determine whether the name should remain on the reserved list or whether changed circumstances mean the name can be licensed; f. restrictions in relation to the registration of generic or geographic domain names should yield if the applicant seeking domain name registration can provide evidence of trade mark rights in the domain name. ********************************************************************** Nitrogen Interactive is strongly opposed to recommendation 4.2.1. a) The restriction on generic & geographic names based on limiting "unfair advantage" is inherently flawed. There is no commercial advantage to be gained through using a non unique brand. b) The historic licencing of those domains which failed the tests has created an unfair advantage to those who's applications were rejected. c) The international trend is now to remove restrictions such as these that were imposed at a time when management of the DNS worldwide, was largely in the hands of educational, and not commercial institutions. ********************************************************************** 4.2.2 Licensing of generic and/or geographic names Relax the current policy and enable licensing of generic and geographic domain names using an appropriate licence allocation system, such as a market based one. ********************************************************************** Nitrogen Interactive strongly support recommendation 4.2.2. ********************************************************************** 4.3.1 Introduction of new .au 2LDs Introduce new 2LDs in the .au domain space, subject to the ICANN experience of introducing new gTLDs. ********************************************************************** Nitrogen Interactive supports recommendation 4.3.1., however we recommend that as Australia's position is unique in terms of the historic allocation policies and our small population, that to use ICANN's experience in introducing new gTLDs would be inappropriate. We recommend that any new 2LDs be introduced subject to public consultation. ********************************************************************** 4.4.1 Domain names that begin with a number Domain names that begin with a number should be allowed, however domain name licence applicants should be made aware of the potential problems. ********************************************************************** Nitrogen Interactive supports recommendation 4.4.1. ********************************************************************** 4.4.2 Country codes and gTLDs as domain names The prohibition on two character alpha domain names or domain names that match existing or new gTLDs should be maintained. ********************************************************************** Nitrogen Interactive opposes recommendation 4.4.2. There is currently no prohibition on 2 character domain names within com.au so to introduce one would mean licences would have to be canceled. ********************************************************************** 4.5.1 Retrospectivity and prospectivity Changes to domain name eligibility and allocation policies will not have retrospective effect for current domain name licence holders, and will only apply to existing domain name licences at the time of re-registration. ********************************************************************** Nitrogen Interactive supports recommendation 4.5.1. however, we recommend that transfers of domain licences between entities be included in this recommendation and that they not be classed as "re-registration". ********************************************************************** 4.5.2 Dispute resolution procedure a. Dispute resolution procedures should apply to: i.all open 2LDs; and ii.closed 2LDs on an opt-in basis, with appropriate modifications if necessary. b. There should be two levels of dispute resolution procedure: i.the first level should deal with due process - ie. where an applicant wishes to contest the implementation of a policy within a domain by a registrar; and ii.the second level should deal with bad faith registration and/or use of a domain name - ie. referral to a dispute panel for enforcement of third party rights. c. At the first (due process) level: i.there should be a first appeal initially to the registrar; ii.there should be a second appeal to an independent arbitrator; iii.the arbitration should be compulsory and binding on the applicant, the domain name licence holder and all registrars; iv.the domain name should be frozen pending arbitration; v.only an eligible applicant should have access; and vi.the remedy should be restricted to registration of the domain name. d. At the second (bad faith) level: i.there should be an appeal to an independent arbitrator; ii.the arbitration should be binding on the applicant, the domain name licence holder and all registrars; iii.it should be restricted to bad faith registration and/or use of a domain name; iv.the domain name should be frozen pending arbitration; v.only eligible applicants should have access; and vi.the remedy can be cancellation of the registration or transfer of the domain name to a successful applicant. ********************************************************************** Nitrogen Interactive supports recommendation 4.5.2. We recommend the introduction of an ICANN Uniform Domain Name Dispute Resolution Policy ("UDNDRP") (http://www.icann.org/udrp/udrp.htm) based policy, however we recommend that complainants using the system, be not able to select a dispute-resolution service provider, as is the case with the current ICANN UDNDRP. We also recommend that any proposed policy be formulated with public consultation. ********************************************************************** Yours sincerely, Raoul Wegat Managing Director, Nitrogen Interactive Pty Ltd