MessageFrom: Damian Broadley 
Sent: Tuesday, 31 August 2004 11:10 AM
To: jo.lim@auda.org.au
Cc: Andrea Dickens; John Lamb; Ken Moon
Subject: Submissions to auDA Name Policy Review Panel - .au domain name eligibility and allocation 
policy rules


Dear Ms Lim

Submissions to auDA Name Policy Review Panel - .au domain name eligibility and allocation policy rules

A J Park is a New Zealand based intellectual property law firm. We have a wide range of clients including 
large international corporations, New Zealand's largest companies, as well as small local clients including 
sole traders. Many of our clients have interests in the Australian market, and consequentially in the .au 
domain name space. As a result of this, we are familiar with the domain name systems in both Australia and 
New Zealand, and this puts us in a good position to comment on the relative merits of these systems. 


The relative lack of eligibility and allocation rules in the .nz name space results in a convenient and 
workable domain name registration regime. Significant emphasis is placed on the requirement that registrants 
keep their whois details correct and up to date. This requirement provides a swift and effective way of 
resolving domain name disputes. If whois details are up to date, a third party can easily identify and 
contact the registrant. If the whois details are not up to date, the third party can ask the Domain Name 
Commissioner to investigate. Investigation by the DNC results in the whois details either being promptly 
updated, or in the domain name registration being cancelled on the basis that up to date registrant details 
were not provided. In practice, this system means that registrants keep their contact details up to date, or 
risk the cancellation of their domain names.


We believe that this approach would also be effective in an Australian context. It would eliminate the need 
for registrars to verify registrant details at the time of registering domain names (which they may not do 
in practice anyway). It would also encourage registrants to ensure that up-to-date contact details were available 
to the public by way of the whois function. This "hands-off" approach has been successful in New Zealand, and 
it has not resulted in a domain name space that is awash with problematic bad data. It has simply meant that 
where someone wishes to challenge a domain name registration, it is able to contact the registrant via the 
whois details, or have the domain name registration cancelled. The cost to businesses of dealing with domain 
names in the largely unregulated .nz space is significantly less than the cost of registering and managing names 
in .au. In our experience that additional cost to those who follow the rules in .au does not equate to less 
disputes or other problems because so many others simply do not follow the rules because they are inefficient, 
misunderstood and impractical. 


As we have noted, our clients include large international corporations, as well as smaller local clients. 
Regardless of the nationality or state of incorporation of our clients, many of them are interested in retaining 
.au domain names. The current eligibility criteria severely restrict the ability of many of our clients to freely 
register .au names, despite having legitimate commercial reasons for doing so. It does not make sense to us for 
the .au domain name rules to provide on the one hand for ownership of .au domains by Australian entities, but on 
the other hand to provide exceptions allowing non-Australian entities to own the domain names. A more consistent 
approach would be to simply acknowledge that non-Australian entities with interests in the Australian market may 
reasonably wish to register domain names in the .au space, and to amend the policy rules to provide for this.


Regarding allocation criteria, we fully support a move toward a 'general connection' warranty. It is not clear to 
us why the current allocation criteria are required, although it is clear to us that they are not used consistently. 
As the issues paper notes, registrants regularly select the default option when registering a domain name, or the 
option that is most likely to ensure that the domain is registered, and registrars do not vet applicants or 
applications. If the Panel considers that the restrictions provided by the allocation criteria should be maintained, 
then we would support the adoption of a general connection warranty as mentioned in the issues paper. 

If there are to be restrictions on the .au space then we support the rules being framed in terms of what is not 
allowed, rather than what is allowed. This will not then inadvertantly prevent businesses and individuals from 
registering and managing their domains in a commercially expedient way. Although not on point, we also support the 
freeing up of transfers of .au domain names. We can see the arguments against allowing for the sale of domain name 
licenses, but suggest that auDA specifically prohibit that, and allow all other reasonable transfers, and at a 
reasonable cost. Again, we suggest a policy saying what you can't do, and not stipulating what you can do. In our 
view clear prohibitions are more likely to be understood and practically effective, give our clients certainty and 
are less open to abuse.


We apologise that these comments are a few hours late and trust that our submission will still be considered. We 
look forward to considering the Panel's draft recommendations.

Yours faithfully


Damian Broadley
Partner 
A J Park
Intellectual Property Lawyers & Consultants
Patent & Trade Mark Attorneys