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auDA rejects domaining ban but approves second-level domains

Kevin Murphy, April 16, 2019, 11:55:14 (UTC), Domain Policy

Australian ccTLD registry auDA has rejected a proposal that would have essentially banned domainers from the .au space.

In response to recommendations of its Policy Review Panel, auDA management said that the PRP “has not provided any evidentiary material” that so-called “warehousing” is harmful.

It further concluded that the policies proposed for monitoring and rooting out suspected domainers would disproportionately increase compliance costs for both registrants and auDA itself.

In management’s response (pdf) to the PRP, auDA wrote that the ban would make investors second-class citizens when compared to powerful trademark owners:

The warehousing prohibition appears to disproportionately target domain investors as the licence portfolios or holdings of trademark and brand owners will be excluded under the PRP proposal. This proposal elevates the rights of trademark and other intellectual property owners over other licence holders in the .au domain, which may give rise to issues of market power and anti-competitive practices. Management believes that further information is required to assess whether the net benefit to the community of prohibiting warehousing in respect of a class of registrants outweighs the competition issues. For these reasons Management believes that there should be no change to the existing policy position.

It added:

Management does not support the PRP recommendation for a resale and warehousing prohibition for the reasons set out earlier. The proposed test for determining whether a registrant has contravened the resale and warehousing prohibition will increase compliance costs for registrants and administration, monitoring and enforcement costs for auDA. These costs may be disproportionate to the risk or severity of the harm to the community from warehousing and the cost of a licence in the .au domain.

Not only did it decide not to crack down on domainers, but auDA also plans to make their lives a little easier by updating current eligibility policy to explicitly state that parking, or “monetization”, is permitted.

To ensure there is no ambiguity or reliance on interpreting ‘content’, auDA management has recommended an additional allocation criteria can be applied to com.au and net.au which would include that a domain name could be used for the purpose of pay-per-click or affiliate web advertising/ lead generation, or electronic information services including email, file transfer protocol, cloud storage or managing Internet of Things (IoT) devices.

It’s a comprehensive win for domainers, such as those represented by the Internet Commerce Association, which had been outraged by the PRP’s findings.

It’s less good news when it comes to the perhaps more controversial plans to allow direct, second-level registrations under .au.

auDA has decided to go ahead with these longstanding plans, which domainers worry will promote confusion and dilute the value of their third-level .com.au portfolios.

The new draft plans (pdf) for the launch of 2LDs would see existing 3LD registrants given “priority status” to register the exact-match 2LD.

There would be a six-month application window for registrants to lodge their claims, beginning October 1 this year.

If the .com.au version and .org.au version, for example, were owned by different parties, the registrant with the earliest registration date would have priority.

After the application window closed, any unclaimed domains would be made available on a first-come, first-served basis.

These rules, and all the results of auDA’s response to the PRP, are open for public comment until May 10.

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Comments (5)

  1. Alex says:

    Kevin, this section in your article is not strictly correct.

    “The new draft plans (pdf) for the launch of 2LDs would see existing 3LD registrants given “priority status” to register the exact-match 2LD.”

    and

    “If the .com.au version and .org.au version, for example, were owned by different parties, the registrant with the earliest registration date would have priority.”

    Given the plethora of documents and proposals on the auDA website, it is easy for anyone to get confused.

    The overriding document is the auDA Management Response to the Policy Review Panel. https://www.auda.org.au/assets/Uploads/Management-Report-PRP-Recommendations-Final.pdf

    Read Page 16 – “Competing Claims”. There is a cut-off date of 4 Feb 2018 – and if you have a domain with a create date prior to this, you become eligible to participate in a negotiation with any other eligible party. If you can’t come to an “arrangement”, then the domain name will become available to the public on a first come, first served basis. Drop catcher heaven.

  2. Cherie says:

    Kevin, Alex’s comment is not correct.

    The way it will work is that:
    If more than one party has a domain with a create date before 4 Feb 18, then those parties are both eligible. If they cant agree on a deal, then the domain name is locked down so no one gets it. (Category 1)
    Then there is a Category 2. Existing registrants are protected. None of the categories says what Alex claims.

    You can read it here in the actual draft policy document – https://www.auda.org.au/assets/Uploads/auDA-namespace-implementation-rules-15-April-2020.pdf

    • Scott Long says:

      Hi Cherie,

      If I may interject here;

      auDA Management Response (page 15) rejected the PRP recommendation of locking in both parties due to unresolved conflict. It would be unfair and unreasonable to presume both parties would never be allowed to negotiate after the cut off date.

      Therefore; as per – page 15

      [Quote]

      If the parties are unable to reach an agreement by the end of the Negotiation period, the domain name will become available to the public on a first come, first served basis.

      [Close Quote]

      see link here: https://www.auda.org.au/assets/Uploads/Management-Report-PRP-Recommendations-Final.pdf

      Cheers, Scott.

  3. Alex says:

    Cherie, that would be wonderful if it was true. I hope I’m wrong; and you’re right.

    That provision was in the original policy that was written for the PRP, but auDA rejected that in their overriding response. As per the link in my first post.

  4. Scott Long says:

    Lets not forge that this is a “Consultation Period” I believe the closing date is the 10th of May.

    For those interested; You might want to take a look at the auDA presentation 16th April esp – (competition Considerations) –

    link here: https://www.auda.org.au/assets/Uploads/Management-Report-PRP-Recommendations-Presentataion-15Apr2019.pdf

    it’s very clear – auDA says;

    [Quote] Providing an indefinite period for conflict resolution allows current registrants to prevent new registrants from using the same name in .au [Close Quote]

    auDA is questioning how best to resolve the “TIME issue” with its proposed conflict resolution clauses by saying –

    [Quote] Alternatives include first-come first served (pure competition model), or a restricted negotiation period (e.g. 4 months) and then first-come, first served [Close Quote]

    I think you’ll find clause 1.9.11 of the .au DOMAIN ADMINISTRATION RULES .au Namespace Implementation – Does attempt to address what to do about this issue;

    auDA Proposed:

    [Quote] (a) the Person fails to pay the annual application renewal fee; [Close Quote]

    Conclusion:

    Holding out for someone to stop paying the application renewal fee for the corresponding exact match .au – is like waiting for paint to dry. (it’s fair to say clause (a)(b)(c) does seek to keep the first come first serve rule intact) but, it may take time for this Mexican standoff to end and other new entrants may want this domain.

    I personally think we can come up with a far better system to deal with this conflicted names issue, dealing with it quickly after the negotiation period ends, and opening it up and giving others a shot at that name is fair.

    Cheers, Scott

    link to au DOMAIN ADMINISTRATION RULES .au Namespace Implementation here: https://www.auda.org.au/assets/Uploads/auDA-namespace-implementation-rules-15-April-2020.pdf

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