I think the main reason behind the restriction is to stop cybersquatters
from registering place names as domain names.  Until the .com.au name
space provides a better dispute resolution mechanism (such as adopting a
localised version of ICANN's Uniform Domain Name Dispute Resolution
Policy - I think from the recent minutes displayed at the auDA website
there is only a matter of time until this happens), allowing anybody
(who fits the .com.au Policy requirements) to register a place name as a
domain name will just lead to more cybersquatting.

While it's clear that under the UDRP someone with 'trade mark rights' in
a place name may be able to get a transfer of the domain name if it was
registered and used in bad faith (see for example the WIPO
"stmoritz.com" decision), it's not clear whether smaller place names
will be able to prove such rights and succeed under the .com.au dispute
resolution policy.  The restriction in the .com.au name space is in
keeping with the restrictions against registering geographical names in
the Trade Marks Act 1995 (Cth) (even though it will depend on the facts
whether a domain name is acting as a trade mark).  Perhaps something
similar to section 41 of the Act should be employed, so that even a
geographical name with no inherent adaptability to distinguish, may be
registered as a .com.au if it satisfies section 41(6) - that is, it is
factually distinctive of the proprietor's goods or services.  If domain
names are going to be treated as business identifiers, perhaps we need
more of an accord with our trade marks legislation.

What does everyone else think?

Bill Ladas, Lawyer


> -----Original Message-----
> From:	Rothnie, Warwick [SMTP:Warwick.Rothnie§msj.com.au]
> Sent:	Wednesday, 18 October 2000 9:01
> To:	'dns§auda.org.au'
> Subject:	RE: [DNS] Place Names
> 
> Mallesons Stephen Jaques
> Confidential communication
>  
> Is there any reason why, in a space like .com.au (for commercial
> entities)
> or .net.au (in practice for commercial entities), there needs to be
> any
> restrictions on what can be registered as a domain name provided that
> the
> name is not itself in breach of some third person's rights or
> otherwise
> likely to mislead or deceive the public?
> 
> Warwick A Rothnie
> Partner
> Mallesons Stephen Jaques Melbourne
> Direct line (61 3) 9643 4254
> Fax (61 3) 9643 5999
> 
> 
> -----Original Message-----
> From: Patrick Corliss [mailto:patrick§quad.net.au]
> Sent: Wednesday, 18 October 2000 5:02:AM
> To: dns§auda.org.au
> Subject: Re: [DNS] Place Names
> 
> 
> Hi David
> 
> I agree with Scott here and would add that "continuing use" is a
> common
> enough
> policy.  In domain names I consider that it would be quite improper to
> renege
> on a previous agreement when untold amounts may have been spent
> promoting
> the
> relevant website.
> 
> That's not to say the opposite hasn't got some merit.  One example is
> leases
> where the lease expires and the cost of all the renovations is lost.
> The
> difference is that you knew the terms of the lease when you entered
> into the
> lease agreement.
> 
> It your case it seems to me there are three possibilities in
> Australia:
> 
> (1)    Lodge the application and, when refused, go to arbitration
> (2)    Get the local Council to cancel Appleby as a place on the map
> (3)    Register the name with Conect.com in the .net.au name space.
> 
> Alternatively you can share (or buy) one of the global TLD Applebys.
> For
> example, see if you can get any agreement with Anthony Appleby who
> seems to
> have appleby.org.
> 
> I note that dappleby.com has gone to a Don Appleby but dappleby.net
> and
> dappleby.org are both available right now.  If all else fails, you can
> always
> change your name !!
> 
> 
> Good luck
> Patrick Corliss
> 
> 
> 
> 
> ----- Original Message -----
> From: Scott Neville <scott&#167;teragen.com.au>
> To: <dns&#167;auda.org.au>
> Sent: Wednesday, October 18, 2000 2:29 AM
> Subject: Re: [DNS] Place Names
> 
> 
> > Hi..
> >
> > > Further to my reasons to register this, Sydney and Melbourne are
> both
> > > .com.au Internet names. I understand these names were registered
> in 1995
> > > which was before the Name Place policy was introduced.
> >
> > Hindsight is a wonderful thing.. I personally would rather that
> sydney and
> > melbourne not been granted, but any responsible registrar has to
> deal with
> > what has been done in the past as best as they can..
> >
> > > An example comes to mind.
> > > In Victoria, a previous road rule was: a car turning left at an
> > > intersection must give way to an oncoming car turning right into
> the
> same
> > > street.
> > [...]
> > > There are not 20,000 people following the old law and 10,000
> following
> the
> > > new law, they all follow the new law.
> >
> > Another example.. Certain antique cars are registered today that
> would not
> > pass the registration requirements of cars manufactured today, yet
> when
> > renewal time comes up, they are still allowed to renew the rego..
> >
> > You can find an example of anything, it doesnt make it relevant or
> > applicable to domain name renewals..
> >
> > > The same exists with these people who have registered place names
> before
> > > the policy was raised. I say this because once the renewal is due,
> it
> > > should have been revoked.
> >
> > > This now brings me to precedent.
> > > Because the old place name people were allowed to renew, it then
> confirms
> > > the precedent that it is OK to use place names on the Internet in
> the
> > > .com.au domain.
> >
> > That is not what the rules say or imply.. They do say that if you
> > registered a name previously that now does not fit the rules, you
> can
> > renew it but could not register it again.. I can see numerous legal
> > problems with taking away the domain name of a business who
> registered it
> > in good faith and think it would do far more damage to domain name
> > policy/industry/good-will in Australia..
> >
> > > I believe there should be some criteria that can be met ie the
> ratification
> > > of the request to use the name by the elected local authority, in
> this
> case
> > > Parry Shire Council. This should be done, in writing and forwarded
> to
> the
> > > registering company for clarification before registration takes
> place.
> >
> > I dont see how a local council can have the authority to grant a
> business
> > or company the right to use its name for their own.. But if you
> think you
> > have a legitimate reason why you should be exempt from the
> place-name
> > rule, by all means take it up with INWW or whoever they are this
> week..
> > They have always listened when I have called them with what I
> believed was
> > a legitimate discrepency..
> >
> > scott..
> >
> > --
> > This article is not to be reproduced or quoted beyond this forum
> without
> > express permission of the author.  You don't know who really wrote
> it.
> > 351 subscribers. Archived at http://lists.waia.asn.au/list/dns
> (dns/dns)
> > Email "unsubscribe" to dns-request&#167;auda.org.au to be removed.
> >
> 
> --
> This article is not to be reproduced or quoted beyond this forum
> without
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> 351 subscribers. Archived at http://lists.waia.asn.au/list/dns
> (dns/dns)
> Email "unsubscribe" to dns-request&#167;auda.org.au to be removed.
> 
> --
> This article is not to be reproduced or quoted beyond this forum
> without
> express permission of the author.  You don't know who really wrote it.
> 351 subscribers. Archived at http://lists.waia.asn.au/list/dns
> (dns/dns)
> Email "unsubscribe" to dns-request&#167;auda.org.au to be removed.