] In message <199806300805.SAA21016&#167;nico.telstra.net>, Geoff Huston writes:
] >The DNS appears to be the servant of ALL of these names spaces, with
] >conflict resolved in a way which is completely uncertain, with
] >no clear delineation of legal responsbility between the applicant, the
] >applican;ts agent and the name administrator.

Nick Andrew wrote: 
] Yes. My opinion is that the DNS should not be subsidiary to any of these
] "legacy" name spaces, in the same way that IP addresses and street
] addresses are not (i.e. if your address is 12 McDonalds drive, you're
] never going to be sued by McDonald's restaurants).

The policy for com.au explicitly sets up com.au as a space where you put
organisational names of Australian commerical enterprises.  Note that
this is very different from say "com" (gTLD), where domain names do not
need to bear any relation to company names, business names or anything.

My view is that using a name under com.au is effectively saying "this
is the name of my Australian commerical enterprise".  This logically
puts com.au at least into the same ballpark as other name spaces for
organisational names of businesses in Australia.

It seems to me that there is a close relationship between company names,
business names and domain names in com.au.  I don't see why trademarks
and other spaces should have anything to do with com.au (as Nick says,
they are like organisational names and street names.)

Personally I view the trademark/domain interaction as an over-reaction
by US courts who don't want to see a system of anarchic "open slather"
where big companies with clear rights to names (in a hand-waving sense)
can be usurped by any individual out to make a quick buck (or a grudge).

I'm no lawyer, but it seems to me that the appropriate law in the case
of com.au is "passing off" (pretending to be an entity which you're not)
rather than having anything to do with trademarks.

But I also think that com.au is sufficiently well mapped back into the
pre-existing real world (legal) name system that there isn't a whole lot
of room for legal uncertainty.

I would have thought conflict resolution would be:
(1) Can the party without the domain name find some reason why the
    other party shouldn't have been granted that domain name (eg:
    incorrect/incomplete information in the application, or other
    breach of the INA com.au policy, or unlawful acts)
(2A) If yes, take it up with INA and seek to have domain-holding
     party's license revoked (section 4.3)
(2B) If no, domain holder wins.  Do not pass go, do not collect $200.

While Geoff's sentiments are probably quite appropriate in many gTLD's,
I don't think they are appropriate in *.au domains, particularly com.au
(which is where it matters).
__________________________________________________________________________
 David Keegel <djk&#167;cyber.com.au>  URL: http://www.cyber.com.au/users/djk/
Cybersource P/L: Unix Systems Administration and TCP/IP network management