[LINK] stephenconroy.com.au update

[Stilgherrian]

On 29/12/2009, at 7:39 AM, Jan Whitaker wrote:
> I strongly recommend reading the latest posting at the bottom of: 
> http://stephen-conroy.com/page.php?11
> Auda has dug in its heals and has kept changing the meaning of their 
> words as this has unfolded.

Has auDA changed the meaning of its words? Where? How?

"Domain Name Eligibility and Allocation Policy Rules for the Open 2LDs (2008-05)" http://www.auda.org.au/policies/auda-2008-05/ says, in Schedule C, that unless the name is "an exact match, abbreviation or acronym of the registrant’s name or trademark" then it must be "otherwise closely and substantially connected to the registrant". Chris Disspain seems to me to be pointing to that requirement quite consistently.

I'm not sure where "closely and substantially connected" has been defined, however, or explained through successive cases. Can anyone help here?

My personal concerns with how auDA has handled this are:


1. Haste. Why was Sapia Pty Ltd's response required in a mere three hours? What was the specific problem or risk which warranted the demand for such a quick response when auDA's own ".au Dispute Resolution Policy (auDRP) (2008-01)" http://www.auda.org.au/policies/auda-2008-01/ for other kinds of complaints gives a respondent 20 days to present their position? In what previous cases has auDA demanded such a quick response?

Disspain says a registrant warrants their eligibility at the time of registration, which is true. But expecting a registrant to drop everyone to respond to demands seems to run counter to the need for due process. Again, what's the rush? It's not like lives are at risk here.


2. Inconsistency. Why has this domain been singled out for such exceptional treatment? Surely there are many other questionable domains registered over the course of a year. Is it purely that the name Stephen Conroy is well known? If so, that points a rather flawed and inconsistent process, does it not? Why should only "well known" names trigger further investigation?


3. Political naivety. Both auDA and Senator Conroy's office say there was no communication from Conroy's office about this, and I have no reason to doubt their word. But that Disspain says there's nothing political here seems to me to be either disingenuous or naive. Even if politics played no part in auDA's decision, given the domain in question I reckon it should have been obvious this would be *perceived* as a political decision and handled with a little more sensetivity.


Now I happen to think Sapia Pty Ltd has scored a few own goals here. Claiming that "Sapia Pty Ltd carries a consultancy product with 'Stephen Conroy' in it's [sic] name. We are also an IT Consultancy and we feel that given that Stephen
Conroy is the minister for communications in this country we have fair use" is, legally, rubbish. Trying to link this issue to freedom of political speech is rubbish.

However, apart from the procedural matters, this does raise a very important question about what that "closely and substantially connected" phrase means in practice.

I contend that if a website run by a commercial organisation is *about* Fred Smith, then fredsmith.com.au is a perfectly reasonable name because it accurately describes what the website is about. Provided, of course, there's no intent to deceive. This is no different, I reckon, from a website about goats using the domain goat.com.au.

What is the website were about, say, fashion and I thought "Goat" was a cool name? You know, stand out from the sheep. Could I then use goat.com.au? Personally I don't see why not. There's a long-running fashion magazine called "Oyster". http://www.oystermag.com/ I reckon they should be able to use the domain oyster.com.au even though they're not about or selling shellfish. I even reckon this would be a fair enough domain even if there had been no previously-existing paper magazine.

It would appear, however, that auDA would disagree.

Is auDA's position that I would have to be actually selling goats as the commercial operation? Or selling goat-connected goods or services, such as collars, feeding bowls or veterinary products? Or that I would have to BE Fred Smith?

One registrar, Enetica, asks you to select from a drop-down list of possible connections -- at least if you're using their reseller interface:

Name of a service which we provide
Exact match for business name or trademark
Abbreviation of business name or trademark
Acronym of business name or trademark
Name refers product we build or manufacture
Refers to program we administer
Name of event that we sponsor
Name of activity we teach or train
Refers to a venue which we operate
Name of the profession practiced by us or our employees

I haven't seen this list anywhere else, and it always struck me as a tad arbitrary. So is it just made-up? 

If nothing else, this all gives auDA a chance to clarify this issue.

At the moment, though, all they've done is create uncertainty. They've indicated through their actions that at any time they can give you just three hours to respond to an ill-defined requirement, or your domain will be taken offline.

Not a good look.

Stil


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