29 August 2000

22nd Floor
150 Lonsdale Street, Melbourne 


Present: Steve Fielding, Brandon Gradstein, Rowan Groves, Ian Halliday, Tony Hill, Keith Inman (until 4pm), Ron Ipsen, Cheryl Langdon-Orr, Jo Lim, Ronnie Liu (proxy for Tony Serong), Geoff Morrison, Christine Page-Hanify, Steve Pretzel, Cliff Reardon, Daniel Rechtman (until 4.30pm), Peter Reynolds, Josh Rowe, Cathy Thawley, Derek Whitehead, Ross Wilson

Teleconference: Philip Argy, Evan Arthur, Kitty Davis, Odette Gourley, Ian Johnston, Leanne Schultz, Galen Townson

Apologies: Sandra Davey, Mark Davidson, Stuart Hamilton, David Purdue, Michael Wolnizer

Actions:

  1. DW and JL to draft minutes from meeting.
  2. DW and JL to extract issues and recommendations from all progress reports into a single document.
  3. DW and JL to circulate paper from connect.com.au to Panel members, and seek additional information from Melbourne IT regarding problems with existing policy for .com.au.
  4. RI to establish web board discussion lists for two new working groups on gateways and retrospectivity.
  5. Panel to continue discussion of issues in each working group via the web board, with proposals to be posted to all Panel members via the closed email list.
  6. Working group convenors to draft progress report for each working group.
  7. DW and JL to develop a common format for working group reports.
  8. DW and JL to start to develop a table of contents for the final Stage 2 report.

Decisions:

Three items were added to the agenda:
5. Conflict of interest
6. Ron Ipsen's paper on new TLD paradigms (circulated before the meeting)
7. Gateways

Review of Working Group progress reports 
1. The Panel thanked the Working Group convenors and contributors for drafting the progress reports. The Panel also thanked Ron Ipsen for establishing the web board discussion lists.

2. Leanne Schultz's paper on connect.com.au's views about the current .net.au policy will be circulated to the Panel, and similar information will be sought from Melbourne IT regarding the .com.au policy.

3. Ian Johnson volunteered to take over from Michael Wolnizer as convenor of Working Group 1. Rowan Groves indicated he may not be able to continue as convenor of Working Group 4.

Next steps - towards Stage 2 report 
4. Discussion of issues in each working group will continue via the web board. When the working group has developed a proposal or recommendation, it should be emailed to the whole Panel via the closed list.

To assist further consideration of the issues, the issues and recommendations from all working group reports will be extracted into a single document.

5. The aim is for each working group to produce a report for the September meeting that can be integrated into a discussion paper. To that end, the Chair and secretariat will develop a common format for working group reports.

Coordination with the Competition Model Advisory Panel 
6. The Chair will convey to the auDA Board the Panel's strong concern that the delay in establishing the Competition Model Advisory Panel will impede progress regarding changes to naming policy.

Next meeting - 26 September 2000 
7. The next meeting will be a full day meeting (10am-4pm) in Canberra, subject to availability of Panel members.

Discussion:

1 Confirmation of 25 July Minutes 
Panel members confirmed the minutes from the meeting on 25 July 2000, previously circulated via the closed list.

2 Review of Working Group progress reports 
Panel members discussed the need to have regard to due process in formulating new domain name policy. It was noted that the existing domain name policies were established for a purpose, and any recommended changes should be based on a full understanding of that purpose.

It was agreed that proposed recommendations could not be considered in isolation, and that the Panel needed to be able to consider a complete package of proposals, and how they interact with each other, before a definitive view could be formed.

a Right Names
There was general but not unanimous agreement that an entity should be permitted to have more than one domain name (within and across 2LDs), to reflect its different business names, business divisions, trade marks, products and services, brand names etc.

Panel members discussed the desirability of requiring some kind of link between an entity and its domain name/s, to avoid cybersquatting and to maintain user confidence in a 'clean' .au domain space. It was considered by some Panel members that an entity should be required to demonstrate a 'bona fide' interest in a domain name. This requirement was considered to apply across all 2LDs.

The alternative 'open slather' option was also raised. There was some concern that perhaps people are registering domain names in other gTLDs or ccTLDs because .au policies are too restrictive. However, it was suggested that this could also be viewed as a positive outcome, as it protects the value or integrity of the .au domain space. It was considered that information from the current registrars regarding disputes and rejection rates would assist the Panel to form a view about the effectiveness of the existing policies.

Panel members saw some merit in the proposal to require entities to tender evidence of continued eligibility for a domain name, to avoid hoarding (and reverse hoarding) of high-value domain names.

The Panel discussed the proposed use of a trade mark application as proof of eligibility for a domain name. The Panel was informed that the current waiting period for trade mark applications is 9 months, applications can be expedited at no extra cost, and IP Australia is working to reduce the waiting period to 6-8 weeks. Concern was expressed that if a domain name were allocated on the basis of a trade mark application, rather than the registration of a trade mark, it is conceivable that a registrar would be required to revoke a domain name licence (up to 15 months later) in the event that an application did not proceed to registration. Revocation or the threat of revocation raised a number of potentially significant issues. There was also some discussion of unregistered common law trade marks.

The Panel considered that an effective dispute resolution policy should be able to deal with disputes about who is entitled to a particular domain name, regardless of what type of eligibility criteria is used.

The Panel noted that auDA has approved the use of an ABN as proof of eligibility for a .com.au or .net.au domain name. Panel members queried the reliability of the ABN register as compared with the ARBN or trade mark registers.

b Legal names
Odette Gourley gave a brief summary of the progress report.

Panel members discussed the proposal that domain names be screened for existing trade mark rights. It was considered that screening would be too costly and difficult, and in any case an effective dispute resolution policy should be sufficient to deal with any disputes that might arise regarding trade mark rights. The Panel noted that some registrars currently require domain name registrants to self-screen, and it was suggested that this could be extended to a requirement that registrants also agree to the dispute resolution policy.

Panel members discussed equity and freedom of speech implications regarding trade marks, eg. should Ford be able to restrict the registration of fordsucks.com.au?

Concerns were raised that favouring trade mark rights over other rights might lead to a flood of trade mark applications. It was considered that the introduction of new 2LDs might help to redress this problem.

It was noted that trade marks should not be able to restrict domain name registrations across all 2LDs - eg. the holder of Oxford TM should not be able to prevent Mr Oxford from registering oxford.emu.id.au

Panel members suggested that a '100 point check'-type system for domain name eligibility may be a suitable option - eg. a registered trade mark might be worth 50 points, an ARBN might be worth 20 points etc.

The Panel noted that the issue of well-known names had not yet been addressed by the working group.

c Names with Fences
Brandon Gradstein gave a brief summary of the progress report.

Panel members considered the proposed options for generic domain names, including the option raised by Working Group 2, that generic domain names should be allowed if the registrant can demonstrate trade mark rights in the name. It was considered that tightening the eligibility rules (ie. requiring registrants to show a bona fide interest in the name) may be a way to resolve this issue.

Similarly, the Panel suggested that the bona fide test, combined with an effective dispute resolution policy, would resolve issues regarding the registration of objectionable names. It was pointed out that there is no universal list of objectionable names, and that they are usually defined with reference to 'community values'.

There was some discussion of the 'gateways' concept (added to the agenda as item 7) and Panel members agreed that further work was required to develop this proposal.

Ron Ipsen outlined his paper on new TLD paradigms (added to the agenda as item 6) regarding the need for a national, apolitical and non-commercial approach to geographic domain names.

d Moving Names Around
Rowan Groves gave a brief summary of the progress report.

The Panel clarified that a domain name does not confer any property rights in itself, but is an expression of other underlying rights, such as a trade mark or ARBN. Domain names should be tradeable only if the underlying rights are also tradeable. The Panel considered that it would not be bona fide for an entity to register a domain name for the sole purpose of selling or trading that name.

The Panel noted that NSI has been reserving lapsed domain names and auctioning them off. It was stressed that the DNS is a public resource, and therefore if .au domain names were to be auctioned, the benefits should be redistributed to all users.

It was pointed out that two types of transfer should be considered: where two entities transfer a domain name between each other, and where one entity transfers its domain name between ISPs.

e Disputes about Names
Daniel Rechtman gave a brief summary of the progress report.

The Panel clarified that the proposed dispute resolution policy would be applicable to bad faith registrations only. Further, the policy is not intended to deal with substantive cases that require detailed investigation, but with cases that can be decided on available evidence. This is the same as the ICANN UDRP.

The Panel was informed that the Online Council has requested officials to develop a dispute resolution policy and procedure for .gov.au. Panel members noted the need to recognise the distinction between open and closed 2LDs, and the fact that a single dispute resolution policy may not be appropriate across all 2LDs. However, it was suggested that issues of due process and potential conflict between claimants are common to all 2LDs and will need to be dealt with in some way.

f New Names
Derek Whitehead gave a brief summary of the progress report.

The Panel noted the need to move slowly in introducing new 2LDs, as this will constitute the first major change to the DNS since its inception, and the effects will be significant.

Concerns were raised that introducing a plethora of new 2LDs would not be in the users' best interests, as the intuitive basis of differentiating between 2LDs would be lost. There was also concern that entities will simply register their domain name in every possible 2LD, which would increase neither the number of domain name holders, nor the diversity of the .au domain space.

It was considered that new 2LDs should be introduced to take the pressure off existing 2LDs. At the same time, there is a need to consider future demand as well as the current situation, ie. the system must be scalable.

The Panel noted the significant challenges in implementing new 2LDs, including technical constraints and how to protect well-known names. It was suggested the Australian Communications Authority's telecommunications Numbering Plan ( http://www.aca.gov.au/number/index.htm), on which Numbering Advisory Committee (NAC) industry members have provided advice, may provide a model for the introduction and ongoing management of new 2LDs.

g Technical Issues
The technical issues paper written by Leanne Schultz was deferred to the next meeting due to lack of time to discuss it.

3 Next steps - towards Stage 2 report 
The Panel discussed how to progress the working groups, including the need to establish new groups to deal with issues falling outside the original groups. The Panel also clarified the next steps towards the public consultation phase in October.

Decisions made are listed above.

4 Coordination with the Competition Model Advisory Panel 
The Panel noted the close link between its work and that of the Competition Model Advisory Panel, and expressed strong concern that the time delay between to two Panels would likely impede progress regarding changes to naming policy.

Decisions made are listed above.

5 Conflict of interest 
The Panel noted that all members represent at least one set of interests.

6 Ron Ipsen's paper on new TLD paradigms 
This issue was discussed under agenda item 2c.

7 Gateways 
This issue was discussed under agenda item 2c.