.au Domain Name Dispute FAQs

domain-name-dispute-faqs

This article was updated on 20 November 2016.

The auDRP provides a speedy and cost-effective alternative to people who are in dispute about the ownership of ‘.au’ domain names. This article provides the answers to the most frequently asked questions about the procedure.

What is the auDRP?

The auDRP (or the .au Dispute Resolution Policy) is an alternative dispute resolution mechanism that is administered by .au Domain Administration Limited (.auDA). .auDA is the self-regulatory body that is ultimately responsible for administering the .au domain space.

The auDRP provides a speedy and cost-effective alternative to traditional court-based litigation. It is an adaptation of the Uniform Dispute Resolution Policy which is used by ICANN for the global Top Level Domains (i.e. domain names ending in ‘.com’, ‘.org’ etc).

What disputes are covered by the auDRP?

The auDRP covers disputes between the holders of domain names that end in –

  • .com.au
  • .net.au
  • .id.au
  • .org.au
  • .asn.au

The auDRP does not cover disputes relating to domain names that end in ‘.edu.au’ or ‘.gov.au’, and it doesn’t cover disputes regarding general top level domains such as those that end in ‘.com’, ‘.org’, and ‘.net’ etc.

What remedies are available under the auDRP?

A successful outcome for a complainant can involve the domain name licence held by the other party either being:

  • cancelled; or
  • transferred to the complainant.

The complainant only has a right to have a domain name transferred to him, her or it if the complainant would have the right to hold the domain name licence under the relevant rules.

What elements need to be proven in order be successful under the auDRP?

Complainants can obtain a ruling for the cancellation or transfer of a domain name if they can prove the following:

  • the respondent’s domain name is identical or confusingly similar to a name, trademark or service mark in which the complainant has rights (e.g. ‘jkl.com.au’ vs ‘jklm.com.au’;
  • the respondent has no rights or legitimate interests in respect of the domain name (e.g. because they didn’t have a legitimate business with that name before registering the domain name); and
  • the respondent’s domain name was registered or subsequently used in bad faith (i.e. the respondent knew that they’d be ‘piggy backing’ off the good will associated with the complainants domain name.

Is it compulsory to use the auDRP, or are there other options?

The answer depends upon whether you are the one making the complaint or not.

If you are the aggrieved party (also known as the complainant), you have a choice. If you do not want to use the auDRP, one of the main alternatives is ‘traditional’ litigation in court, which is almost always much more expensive. If you decide to commence a proceeding under the auDRP, this does not prevent you from changing your mind at a later time and commencing legal proceedings after the panel has ruled on your case.

If you are the other party (also known as the respondent), and someone has filed a complaint against you, you have no choice but to respond to the complaint or an adverse decision would usually be made against you. You generally don’t have a right to commence court proceedings until after the dispute resolution process is over.

What steps are involved in an arbitration under the auDRP?

In very broad terms, the steps involved in an auDRP arbitration are:

  • a ‘Complaint’ is filed with an approved provider of Alternative Dispute Resolution Services ‘Provider’ (e.g. The Institute of Arbitrators and Mediators Australia or the IAMA);
  • the Provider reviews the complaint to ensure that it complies with the policy, and then forwards the Complaint to the Respondent;
  • the Respondent files a Response (within 20 days);
  • the Provider appoints the Panel (which can consist of either one or three adjudicators);
  • the Panel reviews the complaint and the response, and forwards its decision to the Provider (usually within 14 days;
  • the Provider delivers the full text of the decision to each Party, and publishes the decision on the web site.

It is possible for oral submissions to be made to the Panel, but this is very unusual.

How much does it cost?

The filing fee to commence a proceeding under the auDRP is $2,000 in the case of a one member panel and $4,500 in the case of a three member panel.

If a hearing is held with oral submissions, the Provider is entitled to require the payment of additional fees. However, such hearings are extremely rare.

In addition, the Parties must pay their own legal costs. These can be anywhere from an additional $1,000 or so up to tens of thousands of dollars depending upon the complexity of the case, and whether or not oral submissions are required.

Who has to pay?

The Complainant must normally pay all of the fees associated with the auDRP. The exception is where the Complainant specifies a one person panel, and the Respondent requests a three person panel. In this case the Parties each pay half of the costs of the proceeding.

There is no power within the auDRP for the Panel to award costs against the losing party. Therefore, the plaintiff will not be able to recover costs even if successful.

What if I’m not happy with the outcome?

Strictly speaking, panel decisions under the auDRP are binding on both parties, and there is no right to appeal the decision.

However, either party still has the right to commence legal proceedings in court either before the auDRP proceedings have been commenced, or after the proceedings are concluded. If the Panel rules that a domain name must be transferred or cancelled, the .auDA authority will wait 10 days before implementing this decision in order to give you time to commence a law suit regarding the complaint.

Domain Names, DisputesDavid Kwei