It does seem obvious that auDRP decisions would have to be made in 
respect of auDA policies but this is not so. There are significant 
differences between the policies which govern the registration of a 
domain name and the auDRP. This has been noted in a couple of decisions. 
Just one example of this, is that you cannot register a .com.au domain 
name on the basis of an unregistered / common law trademark, however you 
can lose a domain name under the auDRP on this basis.

To clarify the situation, there are two separate issues
1) auDRP decisions can contradict auDA policy as they are based on two 
different criteria
2) if the auDRP Rules are broken there is no mechanism in place to deal 
with it

In regards the first point, just because a panellist contradicts auDA 
policy doesn't necessarily mean they have breached the auDRP Rules. 
However, it does create a precedent which effectively nullifies the auDA 
policy. In regards the second point, I have received a number of emails 
about this topic, and one of the best suggestions I've read so far is 
that there should be a Domain Name Ombudsman to handle such situations.

The full quotations from the decision are:

/The Complainant having clearly established rights in their name and 
trademark, has a right to register corresponding domain names over and 
above anyone else./

/The Respondent asserts that it does not have to show a greater right or 
interest in the Domain Name than the Complainant, as domain names are 
registered on a first-come, first-served basis. However, this is clearly 
not the case as it would defeat the purpose of the auDRP./

These completely contradict paragraph 2.3 of the Domain Name Eligibility 
and Allocation Policy Rules for the Open 2LDs (2005-01).

Andrew


Ian Smith wrote:
> I read your previous post, and read through the AuDRP rules last night,
> and read a few decisions.  It seems obvious to me that decisions would
> have to be made in respect to the AuDA Policies, however that's not so
> clearly or explicitly stated as far as I can tell, but I'm no lawyer.
>
> The closest it comes is to suggest that the Registrant Agreement is
> what governs the process, and that of course is made with respect to
> AuDA Policies, so it's difficult to see how a Panellist could in any way
> 'overrule' or 'invalidate' AuDA's Policies in making any determination.
>
> However, without knowing any of the details of the unpublished Decision
> you refer to, it's not possible to come to any sort of conclusion about
> the concerns you are raising.  I assume that it must be one of the three
> cases listed at http://www.auda.org.au/audrp/current-proceedings/ ?
>
> So it's not really possible to comment on your assertions until we have
> it from the horse's mouth, so to speak, to see if it's an ass instead.
>
> Cheers, Ian
>
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