From: Alan Limbury 
Sent: Tuesday, 22 May 2001 11:46 AM
To: jo.lim@auda.org.au
Subject: Proposed .au DR Policy and Rules

Dear Ms Lim

A lot of careful thought has gone into the new proposed Policy and Rules and 
I commend those involved, particularly Philip Argy, whose experience as a WIPO 
Panelist in URDP disputes must have been invaluable.

As to the Policy, the departures from the ICANN Policy have been well-thought 
out and adapted to Australian conditions.

My only comment on the Policy is in relation to remedies (Clause 4 i). The remedy 
of cancellation has been little sought by successful complainants, presumably 
because upon cancellation, the name becomes available for registration by other 
"cybersquatters".  Thus transfer is the preferred remedy.  But this leaves 
successful complainants having (often) dozens of unwanted domain names, for 
which they have to pay fees, to no useful purpose other than to prevent abusive 
registration.

I note that it is contemplated that there be developed a "Reserved" list of 
names that may not be registered and I wonder whether this concept might be 
developed to enable names that have been the subject of successful administrative 
proceedings to be placed, as one of the available remedies, on such a list, 
instead of being either cancelled or transferred.  There may be a need for 
criteria to be met to be on that list, and these could be applied by auDA or 
by the Registrars rather than the arbitrators, who could order that the name 
be placed on the list if it be found that the criteria are met, failing which 
either transfer or cancellation.

I have 2 comments on the Rules:

Proposed Rule 3(B)(xii)

I question the value in requiring the complainant to deliver a copy of the 
complaint to the respondent upon filing the complaint with the Provider. Unlike 
the court system, time for a Response does not begin to run upon service of a 
copy of the complaint by the complainant: the Provider is required to notify the 
respondent of the commencement of the proceeding and time for the Response does 
not begin to run until such notification.  A Provider may find a complaint 
deficient and require an amendment before it is ready officially to notify 
the respondent.  Meantime, the Respondent has an opportunity to change Registrar 
or to transfer the name to another registrant. I note the proposed Rules, 
unlike the ICANN Rules, do not require the Complainant to deliver a copy of the 
Complaint to the Registrar upon filing, so the Registrar will not be in a 
position to apply the terms of the Registration agreement so as to stop 
"cyberflying" during a pending dispute.  There is a question whether a dispute 
is "pending" (Proposed Policy clause 8 a) upon initiation (proposed Rule 3(a)) 
or upon commencement (proposed Rule 4(c)).  Even under the UDRP, cyberflying 
is possible if the Respondent moves quickly enough: see the decision in 
bbcnews.com, attached, in which, fortunately for the complainant, the transferee 
was effectively under the control of the transferor.



The opportunity for cyberflying could be avoided, or at least reduced, if the 
complainant were not required to give "early warning" of the complaint, before 
the proceeding is officially commenced.

Time for filing a response

Proposed Rules 2(g), 4(c) and 5(a) correspond to the equivalent ICANN Rules and 
some ICANN Providers have interpreted them so as to rule out of time a Response 
filed on the 20th day after the commencement of the proceeding, claiming the first 
day is the day on which the Complaint is forwarded to the Respondent.  I suggest 
5(a) be amended by substituting "after" for "of" immediately after "(20) days" to 
make the position clear.


I hope these comments are helpful

Kind regards

Alan L Limbury