From: Bruce Tonkin 
Sent: Friday, 8 June 2001 5:49 AM
To: 'jo.lim@auda.org.au'
Subject: Response to auDA Dispute Resolution Working Group

To:
Ms Jo Lim
Chief Policy Officer
.au Domain Administration

Melbourne IT response to the auDA Dispute Resolution Working Group Paper 
========================================================================

Melbourne IT endorses the approach of the panel to develop independent, 
speedy and inexpensive methods of handling disputes.  Melbourne IT also 
endorses the approach to leverage off the work done by ICANN in 
developing dispute resolution procedures.

Melbourne IT strongly disagrees that the Dispute Resolution Working 
Group has adequately addressed dispute resolution in the 6 areas 
identified in the report, namely disputes between: a. registrants and 
parties with competing legal rights in the domain name b. registrants 
and registrars c. registrars d. registrars and the registry e. registries 
f any one of the parties listed above and auDA

Melbourne IT can only assume that inadequate time was available to the 
Working Group to address all issues properly in its report.

The appropriate place to incorporate dispute resolution procedures is in 
the agreements between the parties.  For example the agreement between 
registrar and registrant, the licence agreement between auDA and the 
registry, the licence agreement between auDA and the registrars, and the 
agreement between registry and registrar for the provision of registry 
services.  As pointed out in the report it is appropriate to try to use 
similar principles and rules for all of these disputes (e.g the use of 
an independent panel etc).

The report explicitly deals with binding the registrant to agree to 
submit to a mandatory administrative proceeding in the event of a third 
party complaint, in its agreement with a registrar to register a domain 
name.  The wording of the dispute policy is specific to the case (a) 
above.  For example point 4 (h) explicitly excludes the registrar from 
such proceedings, which would make a dispute under case (b) difficult 
under this agreement.

The approach under 4 (a) of the policy to deal with cases (b) to (f) in 
schedules does not work when you read the detail of the existing policy, 
which refers explicitly to case (a) throughout.  A more sensible approach 
would be to develop text for each of the main agreements in the 
competition model that addresses dispute resolution (as is normal in 
commercial agreements), but base on the main principles and rules of UDRP.

In Australia the most common dispute is between registrant and registrar 
with regard to the application of the name policy.  Melbourne IT 
recommends that the Dispute Resolution Working Group reconvene to develop 
policies for this particular instance as soon as possible.  This will be 
of growing importance in the industry re-structure recommended by the 
Competition Panel.  In particular the working group should consider 
disputes that result between registrants, registrars, and the independent 
body alluded to in the Competition Panel report to consider applying the 
non-objective rules of the names policy.  Registrars should be required 
to abide by the dispute resolution framework as part of their licence 
agreement with auDA.  A starting point for formulating this dispute policy 
would be the existing mechanisms developed by Melbourne IT, which include 
independent arbitration, along with documented history of past decisions.


With regard to case (a) dealt with in detail in the report, Melbourne IT 
generally agrees with the improvements made to the UDRP policy.  Melbourne 
IT recommends the following improvements:

Section 4 (a) (iii) of the Dispute Resolution Policy should read: "your 
domain name has been registered in bad faith or you have subsequently used 
the domain name in bad faith" This new wording is based on the wording 
from note 4 of Attachment A.  The version proposed by the working group 
no longer makes sense after the change from UDRP.

Section 4 (c) (i) should read:
"before any notice to you of the dispute, your use of, or demonstrable 
preparation to use, the domain name or a name corresponding to the domain 
name in connection with a bona fide offering of goods or service (not being 
the offering of the domain name under dispute for sale)" The present 
wording would exclude a registry, registrar or reseller from protecting 
their own domain name in a dispute, as their legitimate business is the 
"offering of domain names".

Melbourne IT disagrees with the text under Schedule 1, as it is 
unworkable for other than disputes under case (a).  It is not appropriate 
to try to copy the careful wording from UDRP without further work for 
disputes other than case (a).


In Attachment B, Rules for auDA DRP, Melbourne IT makes the following
recommendations:

The definition of Mutual Jurisdiction should limit the court durisdiction 
to being within Australia as this is a policy for ".au" where the registrants
need to meet an Australian presence rule.

The wording of point 3 (xiv) is a further example of specific wording for 
disputes under case (a).  The registrar, registry and auDA are explicitly 
excluded.

Under section 11, surely the Language of Proceedings for a case in ".au", 
should be in English.  Note the orginal UDRP assumed registrants were located 
across the world, rather than in Australia.

Melbourne IT recommends that auDA accept the work of the working group for 
case (a)with minor amendments and without reference to unspecified schedules, 
and implement this as soon as possible.  The working group should be 
reconvened to consider the other 5 cases.

Dr Bruce Tonkin
Melbourne IT Ltd