New .AU complaints procedure comes into force

As covered in the September 2020 issue of Anchovy News, the eligibility rules for .AU have been tightened up considerably by auDA’s new licensing rules, effectively barring foreign registrants that do not have an Australian presence or hold an Australian trademark registration or application exactly matching the domain name from holding .COM.AU and .NET.AU domain names.  As a result, many brand owners that have, up to now, held .COM.AU and .NET.AU domain names on the basis of the previous, less rigid, local presence rules have suddenly found that their domain name registrations no longer meet the registration requirements and thus cannot be renewed.  This leaves them with a limited number of options if they wish to retain their domain name(s), including applying for an exact match Australian trademark, transferring the domain name to an Australian subsidiary (where this possibility exists), or simply allowing the domain name to lapse.

Allowing a domain name to lapse is always risky prospect in view of the multitude of companies offering backorder (dropcatch) services.  These companies publish lists of dropping domain names and thus any domain names allowed to lapse by their registrants are vulnerable to being picked up by third parties and possibly subsequently used for malicious purposes.

However, registrants who choose to relinquish their .AU domain names that no longer meet the licensing rules should be able to take some comfort in the knowledge that, under the new complaints procedure, they will relatively easily be able to file a complaint against any party that picks up these domain names once they have been released and who is not eligible to hold them. 

According to auDA, the new complaints procedure is designed to deal with complaints that relate to “the responsibilities or obligations of a Registrant or Registrar under the auDA Rules” and include issues such as “whether a person is eligible to hold a domain name, or the actions of a registrar regarding a domain name.”

There are four tiers to the new complaints process, namely:

Initial complaint

Whereas under the previous rules complaints could be submitted directly to auDA, they must now first be lodged with the registrar of record.  According to auDA, the new licensing rules “recognise that in the first instance, registrars are best placed to deal with complaints about domain name licences for which they are the registrar.”

The registrar has 30 calendar days to resolve the issue in question, or must advise of the resolution date if it will take longer.  When the registrar has made a decision, they must inform the parties of the decision and of the reasons for the decision, as well as of the right to a review of the decision.

Review of a registrar decision

If a party is unhappy with a registrar's decision on a complaint, and has exhausted all avenues of redress/escalation with them, it can then request that auDA carries out a review of the decision.

If a registrar’s decision was to cancel the domain licence in question, the registrant has five calendar days to request a review of the decision. 

For other outcomes (the complaint being denied, for example) parties will have 28 days from the date of the registrar decision to request a review.  Provided all the necessary information has been submitted, auDA then has 28 days to conduct a review and may revoke, affirm or vary the decision or hand it back to the registrar for reconsideration.

Once auDA has made a decision, the parties concerned are informed of it and the reasons for it and are informed of the right to request an internal review of auDA's decision.

Internal review of auDA's decision

Any party affected by a decision made by auDA can apply for an internal review of the decision.

Where auDA has decided to cancel a licence, a request for an internal review of the decision must be lodged within 48 hours of receiving auDA’s notification of the decision.  For all other outcomes the application must be lodged within 28 calendar days of the date of the decision.

The internal review is conducted by a person not involved in the original decision and more senior to the person who made the original decision.  If the application is valid, auDA will put on hold any decision made earlier until it has completed its review and provides a timeline for its decision.  The reviewer may affirm, vary or revoke the decision made in auDA’s review of the registrar decision.

An applicant will be notified of the outcome of the review and the reasoning, as well as their right to lodge a request for an external review.

External Review

External Reviews are conducted by the Licence Review Panel, which consists of people who cannot be employees, directors or consultants to auDA or a registrar.  Applications for an external review must be lodged within 10 days of receiving the decision of an internal review of auDA's decision.  The external review is subject to the payment of a fee.

auDA has stated that:

“the role of the Licence Review panel is to assess whether auDA has applied the rules correctly based on the information that was provided. It's important to note that the Licence Review Panel can only review the case based on the material provided, and cannot take into consideration any material not previously provided to auDA as part of the complaints process.”

This is in contrast to the previous system, under which the review panel could request further information.

The panel has 10 days to reach and advise applicants of the outcome.  The panel may affirm auDA's decision, set it aside and make its own decision, or refer it back to auDA for reconsideration.

These new rules apply only to domain names registered, renewed or transferred on or after 12 April 2021.

Should you require assistance with .AU domain names, do not hesitate to contact David Taylor or Jane Seager.

Authored by Anchovy News team