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WHAT’S IN A NAME?

DOMAIN NAME REGISTRATION AND DISPUTES

If you intend to register a domain name, a good place to start is by reviewing the Australian Domain Name Administrator (auDa) website. auDA is a Commonwealth statutory body that regulates and governs the allocation of domain names that have the “.au” address. Its website provides all the necessary information regarding
 registration and dispute policies for “.au” domain names.

To register a domain name you must search the database of one of the various accredited registrars to see if your intended domain name has already been registered. If it hasn’t then auDa has a number of criteria that you must satisfy in order to be successfully registered.

Domain names are allocated under a licence. This means that for “.au” domain names, you must renew your licence with your respected accredited domain name registrar every 2 years. This is a fixed period and cannot be shortened or lengthened.  Domain name allocation is awarded on a first come, first served basis, so you cannot pre-order domain names. However, domain names licences may be sold or if there is a dispute, a court or auDA may transfer a domain name.

In order to be eligible to register the .au domain name you will need to be:

  1. an association incorporated in any Australian State or Territory; or
  2. a political party registered with the Australian Electoral Commission; or
  3. a trade union or other organisation registered under the Workplace Relations Act 1996; or
  4. a sporting or special interest club operating in Australia; or
  5. a charity operating in Australia, as defined in the registrant’s constitution or other documents of incorporation; or
  6. a non-profit organisation operating in Australia, as defined in the registrant’s constitution or other documents of incorporation.

Further, the choice of domain names must:

  1. exactly match, acronym or abbreviation of the name of the registrant’s company or trading name, organization or association name or trademark; or
  2. be otherwise closely and substantially connected to the registrant.

If a registrant is successful in registering a domain name but it does so by providing a register with false evidence to support the above criteria then under clause 5 of the Domain Name Eligibility and Allocation Rules for Open 2LDs, auDA reserves the right to revoke the domain name licence. Clause 5 and the above criteria were designed to prevent cases of cyber-squatting, which occurs where a domain name is registered solely for the purpose of selling it to the owner of a business that shares an exact or similar company name as a domain name.

For example, if say www.nike.com was registered to a party who had no interest in selling sports shoes but intended only to sell the domain name to the company, Nike, then Nike would have two possible courses of action. Firstly, they could commence court proceedings in respect to trade mark infringement, however, this is a costly endeavour and smaller businesses are unnecessarily burdened by excessive legal fees and the lengthy periods of time associated with running litigious matters in the courts. The second more practicable approach, which was developed to be more cost effective, is to apply to the auDa to have the domain name transferred because the domain name was registered in bad faith.

In order for such a transfer to occur, the applicant or complainant (Nike) would have to prove all of the following criteria:

  1. I.      The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
  2. II.      The domain name owner has no rights or legitimate interests in respect of the domain name; and
  3. III.      The domain name has been registered and is being used in bad faith.

It is not enough for the applicant to have a strong case in only one of these points, auDa requires that they must prove all 3 for the domain name to be transferred. Referring back to our example of cyber-squatting, to establish point (i), Nike may argue that the registered domain name is either identical or confusingly similar to its registered trade mark. Case law suggests that even domain names such as www.niki.com or www.niky.com would satisfy point (i) on the basis that they are confusingly similar.

In order to establish point (ii), Nike could put forwarded a number arguments including that the registrant is not using the domain name in connection with an offeringng a legitimate non-commercial or fair use of the domain name, or their intention is for commercial gain to misleadingly divert consumers or to tarnish the name, trademark or service mark at issue.
of goods or services, or they have not been commonly known by the domain name, or they are not maki

In establishing point (iii), Nike would have to present evidence that the party at the time of registering the domain name had no intention of using the website for a legitimate interest, other than to sell, rent or transfer the domain name to another party for valuable consideration. Further, Nike could also argue that the domain name is being used to disrupt its business activities.

The overlap of trade marks and domain name is a direct result of the commercial success of trading on the Internet. Domain names are considered valuable commercial property and it is worth protecting your trade mark from identical or confusingly similar domain names.

If you have any queries in relation to domain name registration or domain name disputes, please do not hesitate to contact us.