Craig,

Business A would be able to apply under the 'substantial and close
connection' criterion.

Chris Disspain
CEO - auDA
ceo§auda.org.au
+61-3-9349-4711
www.auda.org.au


-----Original Message-----
From: Craig Smith [mailto:Craig_Smith§freehills.com.au]
Sent: Thursday, 20 December 2001 14:29
To: dns§lists.auda.org.au
Subject: Re: [DNS] auction question


I find the constant preoccupation with "cybersquatters" surprising, given
that it is frequently at the expense of genuine business users of the
Australian domain name system (.com.au). Given that the auDRP is likely to
be introduced at some stage in the immediate future, why not leave that
system to take care of businesses registering a domain name with no
connection to their own business and subsequently seeking to sell it?

Take a not so fanciful example. "accupuncture.com.au" appears on the first
page of generic domain names to be released. Business A offers accupuncture
services and promotes itself on the web using its trade mark "holey relief"
(also registered as its company name), and has registered holey.com.au to
promote its services. Business B has registered "Bob's Accupuncture" as a
business name (before 13 August 2001) and promotes its accupuncture
services at bobsaccupuncture.com.au. Both businesses think that a more
memorable domain name would be accupuncture.com.au, and they also think
that more people may guess that domain name and hence locate their
services.

The auction system only allows Business B to seek to obtain that
registration, even if Business A values it more highly and would be
prepared to pay more for it. How is it that this is fair and equitable?
What if Business B registered its business name in order to secure
accupuncture.com.au because of its ignorance of the prohibition on generic
domain names, but Business A did not because it "knew" that there was a
(permanent) prohibition on such registrations?

Our trade mark system is reluctant to grant monopolies for generic words,
the rationale being that competitors should have an equal right to use that
descriptive name (depending on whether the generic word would be
descriptive of the particular goods/services the subject of the trade mark
application). If generic domain names are to be made available, then it is
difficult to decide who has the greatest right to it - therefore why not
simply make them available to the business that values it highest. Just
because one business adopts a descriptive (read generic) name as part of
its business name shouldn't give that business an advantage over a
competitor who, sensibly, registers a more distinctive name, but has just
as much of an interest in securing the generic word as a domain name.

I cannot understand the rationale for restricting availability to those who
"qualified" as at 13 August 2001. If it is true that it is to somehow
ensure that auDA board members receive no unfair advantage, then how is it
that they could? They would still have to bid more than anyone else was
prepared to in order to secure the generic domain name of their choice.

Finally, allowing businesses to now register an appropriate name (that
relates to their business) in order to participate in the upcoming auction
would minimise the prospects of "cybersquatting" since there should be
no-one else who values the domain name more highly to sell it to.

Craig Smith

All views are my own.


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