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Focus: Domain Names – June 2008New policy relaxes the rules on transferring .au domain name licencesIn brief: With effect from 1 June 2008, auDA, the Australian Domain Name Administrator, has introduced a policy that removes most of the restrictions that previously applied to the transfer of .au domain name licences. The procedure for transferring .au domain names has also been simplified. Senior Associate Rebecca Sadleir discusses the changes.
IntroductionauDA, the Australian Domain Name Administrator, is the government-endorsed policy authority and industry self-regulatory body for the .au domain space. It is responsible for developing and implementing policies in relation to the .au domain space. On 1 June 2008, after several months of public consultation, auDA introduced the new Transfers (Change of Registrant) Policy (2008-08) (the policy).
BackgroundThere are no proprietary rights in an .au domain name, and it is not strictly possible to 'sell' a domain name. This is because a registrant does not 'own' the name itself; instead, it holds a licence to use the domain name for a specified period, subject to certain terms and conditions. However, it is possible to transfer a domain name licence in certain circumstances, and this is what the new policy deals with. Historically, the registration and transfer of domain name licences in the .au space have been subject to strict controls. Before the policy was implemented, transfer of a domain name licence was permitted only in specific, limited, circumstances and the transfer process was cumbersome.
Changes introduced by the policyUnder the policy, subject to one prohibition, discussed below, a domain name registrant may:
The result of this is to permit a secondary market in .au domain names, such as has existed for many years in the .com space.
Prohibition on transfer within six months of registrationIt is a fundamental rule of .au domain name registration that a person may not register a domain name for the sole purpose of resale or transfer to another entity. This basic rule is not altered by the new policy. In order to support this principle, and in an attempt to minimise cybersquatting, scams and misuse of domain name registrations, the policy prohibits a registrant from transferring its domain name licence within the first six months after registration. This prohibition applies to newly registered domain names only and not to renewed or transferred domain names. A registrant may apply to auDA for authorisation to transfer its domain name licence within the first six months after registration. Any authorisation will be at auDA's discretion. The policy provides that circumstances in which auDA may authorise a transfer include:
Eligibility and allocation rulesTwo of the considerations that auDA took into account in formulating the policy were the desire to maintain the Australian identity of the .au domain space, and the need to preserve its integrity by minimising cybersquatting and other misuse of .au domain name registrations. Those considerations are addressed by the relevant eligibility criteria, which must be met by any person wishing to hold a domain name licence, including a transferee under the policy. These are not altered by the policy, and are set out in the Domain Name Eligibility and Allocation Policy Rules for Open 2LDs . To be eligible to hold a .com.au domain name, the registrant must be 'Australian'. This means that it must be an Australian registered company; trading under a registered business name in Australia; an Australian partnership or sole trader; a foreign company licensed to trade in Australia; the owner of, or applicant for, an Australian trade mark or application; an association incorporated in Australia; or an Australian commercial statutory body. In addition, domain names in the .com.au domain must be either an exact match, abbreviation or acronym of the registrant's name or trade mark, or otherwise must be 'closely and substantially connected' with the registrant. There are other, similar (but generally more restrictive) eligibility criteria for other .au second-level domains, such as .org.au, .asn.au and .net.au .
Procedure and effect of transferThe policy sets out standard wording that a domain name licence transfer application must now contain. This includes short declarations from both the transferor and transferee as to their authorisation to submit the form, to transfer the domain name and, in the case of the transferee, that it is eligible to hold the domain name under the eligibility rules. This replaces the previous, more burdensome procedure, which involved providing documentary evidence of the transfer and a statutory declaration by the new registrant detailing the circumstances of the transfer. As before, a transfer will result in a new two-year domain name licence being issued to the proposed new registrant. The previous registrant is not entitled to be reimbursed for the unused portion of its domain name licence. Parties to a transfer may be asked to disclose the sale method and price, on a voluntary and confidential basis, so that auDA can collect aggregated statistical data. The auDA policy review panel recommended that the new policy be reviewed after two years.
For further information, please contact:
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