CooperMills

Tags: auDA, domain lawyers, domain name lawyers, IT Law, technology lawyer
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Doctor’s Associates Inc, which operate and franchise Subway stores, is red faced after losing a domain name dispute over MySubwayRewards.com.

The recent decision is a set back for the sandwich chain as they may have lost the battle due to their lawyers failing to do their homework. The Panel held that Subway’s lawyers failed to provide enough evidence to prove that the website was confusingly similar to the SUBWAY trade marks. They provided no explanation or argument as to why the phrase “mysubwayrewards” in the domain name may be confused with the mark SUBWAY.

This seems like an easy enough thing to do right? But it appears that the lawyers got lazy and assumed that they already had the cat in the bag by identifying the name as confusing. They omitted to then take the necessary step of proving how and why.

The Panel highlighted that due to the fact that the word SUBWAY was bracketed between other words which could quite conceivably be used in combination to convey a meaning unassociated with the SUBWAY mark, it becomes necessary to sufficiently demonstrate identity or confusing similarity to the trademark at issue.

This is an example which shows why trademark and domain name owners should carefully select lawyers who understand the UDRP and auDRP processes, and who regularly undertake this type of work, like Cooper Mills Lawyers.

Tags: Cooper Mills Lawyers, domain law, domain lawyers, domain name law, domain name lawyers
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The issue of domain name wildcarding became a hot issue in 2006, after auDA deleted 19 domain names from a Registrant because they were wildcarded. This matter ended up in the Federal Court of Australia and was fought out, until the parties resolved the matter shortly before trial.

This Court battle caused auDA to develop an interim policy on wildcarding in 2007, which was to have been reviewed  but almost 3 years on and nothing has happened – so it remains an interim policy. Our enquiries of auDA revealed that they did intend to have their security and stability advisory committee (SSAC) look at the issue soon (that was in 2009) – it is interesting to note that at the time the interim policy was announced the SSAC didn’t have any members!

In order to understand wildcarding one must understand what it means. The auDA policy defines it as:

A “wildcard DNS record” is a record in a DNS file that will match all requests for non-existent domain names, so that a user who types a non-existent domain name into their browser does not get the standard “Error 404” message, but is instead redirected to another webpage.

The auDA definition is a little misleading. Firstly a wildcard record matches all requests for fourth level domains as opposed to ‘non-existent domain names‘. For example a domain coopermills.com.au exists, but if it were wildcarded then anything that was typed before coopermills.com.au with a full stop would resolve to (usually) a web page hosted at the third level domain. If an internet user was to type cars.coopermills.com.au, then it may resolve to www.coopermills.com.au. The effect of this is to in essence allow any fourth level domain, as opposed to manually creating them.

Wildcarding is commonly used by almost all parking companies such as Sedo. The rational is that it is better that an internet user is directed to content rather than an error – this enhances the internet user experience.

auDA had claimed that wildcarding caused the security issues identified in RFC 1535. The Registrant called the author of RFC 1535 Ehud Gavron to give evidence as an expert at the trial, who disagreed. During Mr Gavron’s visit (and after the matter had been resolved by the parties), Cooper Mills Lawyers hosted Mr Gavron who spoke on wildcarding of domain names in the .au context.

To download the podcast click on the link: Domain Wildcarding: The Implications for the .au Space

Tags: Cooper Mills Lawyers, domain law, domain lawyers, domain name law, domain name lawyers, domain wildcarding
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After an 11 year process, ICANN has signed a historic agreement with the US Department of Commerce, which affirms its role as the supreme manager of the global domain name system.

In 1998 ICANN was set up by the US Government under the oversight of the US Government. Although sometimes controversial and subject to debate, ICANN has managed to successfully guide the global domain name system. ICANN’s most recent meeting was held in Sydney, and was attended by industry participants including Cooper Mills Lawyers.

According to ICANN:

When ICANN was created in 1998, with the assistance of the United States Government, a memorandum of understanding (MOU) process was started with the objective of achieving a noble goal: the coordination of the Internet’s unique identifiers by the private sector through a not-for-profit organization where policies were developed from the bottom up.

The signing of the Affirmation determines once and for all that this model works.

The JPA was the seventh amendment of the original MOU.  Over the years there have been thirteen report cards on performance of responsibilities to the US Department of Commerce alone.  So why is the Affirmation of Commitments a further step in progress and internationalization of the ICANN model?

It commits ICANN to remaining a private not for profit organization. It declares ICANN is independent and is not controlled by any one entity. It commits ICANN to reviews performed BY THE COMMUNITY – a further recognition that the multi-stakeholder model is robust enough to review itself.

The full text of the Affirmation between ICANN and the US Department of Commerce is available here.

Whilst this is a historic step it is not likely to affect business as usual at ICANN. This Agreement comes at an important time with the introduction of IPV6 and new TLDs among, the host of other challenges facing ICANN.

Tags: domain law, domain lawyers, domain name law, domain name lawyers, domain name regulation, ICANN
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Yesterday we received notification from auDA (the .au Domain Name Regulator) that they had instigated a review into the Domain Renewal Expiry and Deletion Policy.

According to auDA the review will focus on:

• 1. Whether the current 30 day pending delete period for expired domain names (ie. where the registrant has not renewed their domain name) is appropriate.
  2. Whether the current “domain purge” procedure (ie. where domain names are purged from the registry at a random time between 10.30am and 5.00pm AEST on the next business day after the pending delete period ends) is effective.
  3. What action (if any) auDA should take in relation to unofficial domain drop lists, and the domain-catching services being provided by some accredited registrars and other industry participants.

At the risk of sounding pessimistic, auDA may be using this review as a cover to stifle innovation by putting a stop to, or restricting domain drop lists and auctions. auDA needs to carefully consider these issues, the .au name space is already over regulated by world standards, the last thing we need is more regulation.

We have been asked to make a submission on behalf of Australian domainers – without speculating on what our submissions will say, it is clear that there is great support for the drop lists and auctions.

If you are a domainer and you would like to make submissions, we encourage you to contact us so that we can combine your comments / views with our broader submissions to this review.

Tags: auDA, domain law, domain lawyers, domain name law, domain name lawyers
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We were recently riding a tram in Melbourne when we noticed a Tourism Australia campaign entitled No Leave No Life.

Being domain lawyers, the first thing that stood out to us was the very prominent use of the of the domain name noleavenolife.com. This got us thinking, why don’ t Tourism Australia, or other many Australian businesses use the a .au domain name. One simple explanation is that one wasn’t available, but we suspect the issue is a little deeper than first thought. In our view it is one of publicity and awareness, or a lack of it.

We regularly see promotions and campaigns which use a GTLD such as .com, but what is peculiar about this new Tourism Australia campaign is that it is targeted at an internal audience (yes Australian employees and employers), yet a .com is used. Is this because of a lack of awareness ? We think that this may be the answer in many situations (although not all). The .au space does not receive enough promotion. This is more evident in light of the impending launch of new GTLD’s discussed at ICANN’s meeting in Sydney last week, where we attended with some fanfare the ‘launch for a bid’ for the .food GTLD by celebrity chef Wolfgang Puch.

For Domainers one of the most telling signs of a lack of demand in the .au domain space, are the relatively low sale prices for what would otherwise be premium domains in most other GTLDs. One only has to look at www.netfleet.com.au to see what the market is valuing names at.

We don’t recall any recent campaigns to promote the .au name space, yet that is what is needed. For example .Asia has been heavily promoted in movies and music, maybe this is what the .au space needs.

Although, the public expect that auDA has a responsibility promote the .au space, auDA’s constitution does not make specific reference to the marketing and promotion of the .au domain space. To auDA’s credit they have in the past advertised in the press and given away base ball caps, something more needs to be done so that Australian domain owners can get the full benefit of their domain space. Maybe they could start by writing to Tourism Australia.

PS. auDA may want to check out the .nz Domain Commission, whose most recent “.nz is our home” campaign is doing precisely what the .au space needs a large scale awareness program!

Tags: .au Domain Law, .au Domaining, domain law, domain lawyers, domain name lawyers, domainer, domaining
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Paul Twomey CEO and President of ICANN yesterday announced that he would not be seeking to renew his contract with ICANN, at the expiration of its term this year, and will move on at this end of the year.

Twomey made his announcement in front of 1200 delegates at ICANN’s 34th International Public Meeting in Mexico City.

Twomey said:

“Last year, I told the Board that I did not want to renew my contract as President and CEO for another 3 year term,” said Twomey. “While I am deeply and personally committed to ICANN and its success, I think this is the right time for me to move on to another leadership position in the private or international sectors.”

Twomey became CEO and President of ICANN in 2003 after 4 years as Chairman of ICANN’s Governmental Advisory Committee (GAC), after a distinguished career.

Tags: domain law, domain lawyers, domain name law, domain name lawyers
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ICANN, The Internet Corporation for Assigned Names and Numbers has just released the its Draft Applicant Guide Book for applicants wishing to register a new gTLD (top level domain). This brings us one step closer to the reality of new top level domains.

ICANN states that one of its “foundational principles has been to promote competition in the domain-name marketplace while ensuring Internet security and stability.” . With the soon to open gTLD application rounds it is hoped that applicants will apply for new gTLDs, and promote competition in the marketplace for existing gTLDs.

The possibilities appear to be endless, for example some suggestions have come from corporate organisations – for example Coca Cola could apply for the .coke gTLD or Pepsi could apply for the .pepsi gTLD. With a price tag of approximately $200,000, it is not likely that anyone other than corporates or cashed up entrepaneurs will be in a position to launch a gTLD – but it will only be a matter of time before a profitable business model will be developed giving new gTLDs broader accessibility.

As a consequence, ICANN claims that the “expansion will allow for more innovation, choice and change to the Internet’s addressing system, now constrained by only 21 generic top-level domain names. In a world with 1.5 billion Internet users—and growing—diversity, choice and competition are key to the continued success and reach of the global network.”

This is a positive, allowing for more flexibility and competition – but opponents argue that it will diminish the value of existing gTLDs, which are now a very limited commodity in light of the fact that almost all the good generic names have been registered in the existing gTLD space.

Only time will tell…..

Tags: domain law, domain lawyers, domain name law, domain name lawyers, ICANN
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