8 February 2022
Domain name registrars understandably like selling new stock to existing customers, reluctant or otherwise. And so we have the introduction of .au “direct” domain names – for example, bennettandco.au. This development is not novel to Australia – it occurs in many other jurisdictions.
All au direct domain names (with exceptions around prohibited names such as Olympic.au) will be available for purchase from 24 March 2022. The process is being managed by a company called Afilias, which will sell these new domain names directly themselves, and also allow domain name perennials like Crazy Domains and GoDaddy to sell directly to the public.
The ability to purchase (or more accurately, license) .au direct names is open to anyone with a verifiable connection to Australia. The Australian domain name administrator, auDA, is sensibly concerned not to cause a stampede of opportunistic domain name farmers from overseas snaffling up this new stock.
A person or organisation who currently holds a domain name in any other .au namespace (eg. com.au, asn.au, and so on) will be able to apply through a domain name registrar for Priority Status to register its exact match in .au direct during a window of six months from 24 March 2022 until 20 September 2022. The six-month period is known as the Priority Application Period.
And of course, there will be a land rush. The last thing you want as a business owner is for a third party to maliciously squat on any .au direct domain name containing your brand, for the purposes of, say, a critique site (a legitimate purpose for the use of a domain name and a common strategy for cybersquatters).
Disputes are inevitable as auDA notes:
“In a small fraction of cases there is the potential that more than one person will apply for the same reserved .au direct name. This may occur where different registrants hold the same name in different namespaces . This is known as a contested name.”
auDA says that in the event of a dispute, the .au direct name will be allocated according to priority categories. “The creation date of the domain name on which the application is based determines the priority category:
- Priority Category 1: Names created on or before the cut-off date of 4 February 2018
- Priority Category 2: Names created after the cut-off date of 4 February 2018
… Where there are multiple applications for a contested name, the following principles apply:
- Category 1 applicants have priority over Category 2 applicants;
- Where there are multiple Category 1 applications, the name is allocated on agreement/negotiation between the Category 1 applicants;
- Where there are only Category 2 applicants, the name is allocated to the applicant with the earliest creation date.
So, if both your brand, and the brand of a third party competing for the domain name, have creation dates which predate 4 February 2018, auDA washes its hands and says that the parties must sort it out between themselves.
By way of example as to how complicated this could be, the Australian trade mark register suggests that there would be many legitimate claimants to “abc.au”, including (but not limited to):-
- Australian Broadcasting Corporation
- Australian Boating College
- Australian Bullion Company
- ABC Blinds and Awnings
- Alpine Business Centre
- Australian Badminton Centre
- Andrea Beatty Compliance (ABC) Pty Ltd
These businesses (and potentially many more) go from quiet coexistence to the need to haggle between themselves as to who should own the domain. And if no agreement is reached? auDA says:
Where no agreement is reached:
- The .au direct domain name remains subject to a Priority Hold;
- The name remains on Priority Hold until there is only one active application remaining.
A limbo of use and control might be a better outcome than a valuable domain name falling into the hands of an unfriendly party, but this could give rise to considerable delay or stalemate.
From a marketing perspective, the new .au direct domain names could be perceived as a consumer-friendly abbreviation of the default .com.au domain names – another, potentially easier pathway by which internet users can find your business. It will also open opportunities for the ambitious to secure generic domains – books.au or accounting.au . But for trade mark owners, it’s an administrative headache and potentially a gateway to a brand dispute.
For more information, please contact the authors:
David Stewart | Principal
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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