Resolving disputes

Domain name disputes in Australia

auDA

.au Domain Administration Limited (auDA)

.au Dispute Resolution Policy (auDRP)

The au Dispute Resolution Policy (auDRP) was first adopted by the auDA Board on 13 August 2001 with the purpose of providing administrative proceedings as an alternative to court litigation with cost effective and time efficiencies for the resolution of disputes between the registrant of a .au domain name and a party with competing rights.

The auDRP is an adaptation of the Uniform Dispute Resolution Policy (UDRP) administered by the Internet Corporation for Assigned Names and Numbers (ICANN) with respect to the global Top Level Domains (gTLDs).

auDA is the Federal Government's nominated delegate from ICANN for the .au country code Top Level Domain (ccTLD). That means auDA is the industry self-regulatory body for .au domain names. There are various disputes that can arise in relation to domain names, but where brand name or famous name owners wish to complain about the use of a domain name under .au that is identical or confusingly similar to their brand or famous name, the .auDRP provides an inexpensive and faster alternative to litigation for the resolution of those disputes. The auDRP is a uniquely Australian adaptation of the Uniform Domain Name Dispute Resolution Policy (UDRP) that applies to disputes involving generic Top Level Domains (gTLDs), which are domain names with no country code at the end.

Application of the auDRP

All domain name licences issued or renewed in the open 2LDs from 1 August 2002 are subject to a mandatory administrative proceedings under the auDRP and include:

asn.au

com.au

id.au

net.au

org.au.

The auDRP does not apply to all types of domain name disputes and only applies to disputes which meet the requirements set out in Paragraph 4(a) of the auDRP at Schedule A of this document.

The auDRP is an alternative dispute resolution mechanism. Complainants are not obliged to use the auDRP but may instead choose to pursue other means of resolving their dispute, such as litigation. Commencement of an administrative proceeding under the auDRP does not prevent either party from initiating legal proceedings at any time.

auDA Approved Providers

Each auDRP proceeding is administered by an independent, auDA-approved Provider of dispute resolution services. Each Provider is wholly responsible for the appointment of its Panellists according to its own accreditation procedures. Individual Panellists are not approved or accredited by auDA, and auDA does not manage or supervise their activities in any way. Any queries or complaints about a Panellist should be directed to the relevant Provider in the first instance.

Resolution Institute is the only Australian organisation approved by auDA to administer auDRP disputes. The World Intellectual Property Organisation (WIPO) based in Geneva, Switzerland, is also an approved provider under the auDRP.

Technically no-one owns a domain name - they are licensed for one to five years and if not renewed, or if the registrant ceases to be eligible to hold the domain name, the licence may be cancelled. For comprehensive information about how domain names are licensed in Australia after 12 April 2021 you can read about auDA's new licensing rules here:

https://www.auda.org.au/au-domain-names/new-au-licensing-rules

Make sure you understand the difference between a dispute involving someone using a domain name that is confusingly similar to your brand or your personal, company or business name, and a dispute involving some other aspect of a Registrant's rights or conduct. Only the former can be the subject of a Complaint under the auDRP. That is the process discussed below.

Overview of the Process for Challenging the Right to Hold a Domain Name in Australia

The process involves lodging a Complaint together with the administration fee prescribed by auDA. Resolution Institute will then assess the Complaint for administrative compliance with the auDRP itself, auDA's Rules and Resolution Institute's Supplemental Rules

If the Complaint is found to be administratively deficient in any way Resolution Institute will notify the person who lodged it (called the Complainant). The Complainant will then have 5 calendar days to rectify the Complaint and re-lodge it.

Once a Complaint is in order and the prescribed fee has been paid Resolution Institute will send a copy to the person against whom the Complaint was filed (called the Respondent). This step formally commences the proceedings. The disputed domain name will then be "frozen" so that it cannot be transferred or have any of the registration particulars changed until a decision on the Complaint has been handed down. The Respondent has 20 calendar days from the commencement of the proceedings to lodge a Response to the Complaint (weekends and public holidays are included in the 20 days).

After the 20 days has elapsed Resolution Institute will appoint a Panel to decide the dispute whether or not a Response has been filed. The matter is then placed in the hands of the Panel. Ordinarily a Panel is constituted by one person but either party can request a three-person Panel (which incurs a much higher fee). The Panel has 14 calendar days to decide the dispute and issue a written decision, which Resolution Institute will forward to the parties as well as to the Registrar of the disputed domain name and to auDA.

If the decision is in favour of the person who lodged the Complaint the Registrar will request their particulars so that the domain name registration can be transferred to them. If the Panel dismisses the Complaint the domain name will simply be unlocked and control of it will be returned to the Respondent.

A Complainant may seek to have the domain name licence:

- cancelled, in which case the domain name will become available for registration in the normal way; or

- transferred to themselves, but only if the registrar determines that they are eligible to hold the domain name under the relevant policy rules.

Panel decisions under the auDRP are binding on both parties. There is no appeals process.

If the unsuccessful party is not satisfied with the decision handed down by the Panel, they may decide to initiate legal proceedings against the other party. If the Panel decides that the domain name should be transferred or cancelled, the registrar is required to wait 10 business days before implementing the decision to allow for legal proceedings to be commenced.

If the unsuccessful party is not satisfied with the way in which the proceeding was administered by the Provider, they should raise their concerns directly with the Provider in the first instance. auDA may intervene in the administration of a proceeding in cases where there has been a clear and substantive procedural flaw.


Complaint

To lodge a Complaint:

  1. Ascertain when the disputed domain name was first registered in Australia - this information MUST be included with your Complaint. Lodge this form to obtain this information from auDA: https://www.auda.org.au/node/348
  2. Ascertain the exact name and address of the currently registered user of the disputed domain name (the Registrant) as well as the various contacts provided with the registration particulars. This information is contained in what is called the WhoIs record and you can obtan a copy free of charge here: https://whois.auda.org.au/
  3. Make sure you are fully conversant with the auDRP scheme at https://www.auda.org.au/policy/au-dispute-resolution-policy-audrp. There you will find some explanatory material and then, in Schedule A, the auDRP itself and, in Schedule B, the Rules. These must be read in conjunction with Resolution Institute's Supplemental Rules.
  4. Make sure your Complaint complies with every aspect of Rule 3(b) - otherwise it will be returned to you for correction.
  5. Your Complaint and all of its attachments/annexures can only be filed in PDF or Word form by email to nominations@resolution.institute. The Subject should be "New auDRP Complaint - [disputed domain name, eg smithnfish.net.au]". The Complaint MUST be accompanied by the lodgement form together with a copy of the payment confimation for the prescribed fee that you can download here: https://www.resolution.institute/documents/item/1783

Paragraph 3 of the auDRP Rules in Schedule B states:

The Complaint

(a) Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any Provider approved by auDA. (Due to capacity constraints or for other reasons, a Provider's ability to accept complaints may be suspended at times. In that event, the Provider shall refuse the submission. The person or entity may submit the complaint to another Provider.)

(b) The complaint including any annexes shall be submitted in electronic form and shall:

(i) Request that the complaint be submitted for decision in accordance with the Policy and these Rules;

(ii) Provide the name, postal and email addresses, and the telephone and fax numbers of the Complainant and of any representative authorised to act for the Complainant in the administrative proceeding;

(iii) Specify a preferred method for communications directed to the Complainant in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy (where electronic communications via the Internet are unavailable);

(iv) Designate whether Complainant elects to have the dispute decided by a single member or a three member Panel and, in the event Complainant elects a three member Panel, provide the names and contact details of three candidates to serve as one of the Panellists (these candidates may be drawn from any auDA approved Provider's list of Panellists);

(v) Provide the name of the Respondent (domain name holder) and all information (including any postal and email addresses and telephone and fax numbers) known to Complainant regarding how to contact Respondent or any representative of Respondent, including contact information based on pre-complaint dealings, in sufficient detail to allow the Provider to send the complaint as described in Paragraph 2(a);

(vi) Specify the domain name(s) that is/are the subject of the complaint;

(vii) Identify the Registrar(s) with whom the domain name(s) is/are registered at the time the complaint is filed;

(viii) Specify the name(s), trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services, if any, with which the mark is used (Complainant may also separately describe other goods and services with which it intends, at the time the complaint is submitted, to use the mark in the future.);

(ix) Describe, in accordance with the Policy, the grounds on which the complaint is made. (The description should discuss any aspects of the Policy that are applicable. The description shall comply with any word or page limit set forth in the Provider's Supplemental Rules.);

(x) Specify, in accordance with the Policy, the remedies sought;

(xi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;

(xii) State whether a copy of the complaint, together with the cover sheet as prescribed by the Provider's Supplemental Rules, has been sent or transmitted to the Respondent (domain name holder), in accordance with Paragraph 2(b);

(xiii) State that Complainant will submit, with respect to any challenges to a decision in the administrative proceeding cancelling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction;

(xiv) Conclude with the following statement followed by the signature of the Complainant or its authorised representative:

"Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute's resolution shall be solely against the domain name holder and waives all such claims and remedies against (a) the dispute resolution Provider and Panellists, except in the case of deliberate wrongdoing, (b) the registrar, (c) the registry administrator, and (d) auDA, as well as their directors, officers, employees, and agents."

"Complainant certifies that the information contained in this Complaint is to the best of Complainant's knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good faith and reasonable argument."; and

(xv) Annex any documentary or other evidence, including a copy of the Policy applicable to the domain name(s) in dispute and any name, trademark or service mark registration upon which the complaint relies, together with a schedule indexing such evidence.

(c) The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.

Resources:

auDA policy (PDF)

Domain Name Dispute Application Form (DOC)

Resolution Institute Supplemental Rules (PDF)


Response

The Respondent will receive notice of the Complaint from the Provider. The Respondent has 20 calendar days from the date of commencement of administrative proceedings to lodge a response to the Complaint. Respondents will be provided with a copy of the complaint and should take care to familiarise themselves with the auDA policy and Resolution Institute supplementary rules before responding to the complaint. The Respondent should ensure that they have read the entire auDRP and Rules at Schedules A and B of this document before filing a response. The Response must meet the requirements set out in Paragraph 5 of the auDRP Rules in Schedule B of this document, as well as any requirements detailed in the Provider's Supplemental Rules (available from the Provider's website).

Copies of the response should be sent to the Complainant and to the Provider assisting in the administrative proceedings.

The Respondent is not obliged to file a Response. If no Response is received, unless there are exceptional circumstances, the Panel shall decide the dispute based on the information provided in the Complaint.

There are no fees payable by the Respondent unless they elect to have the dispute heard by a three member Panel, in which case they must pay half the costs.

Paragraph 5 of the auDRP Rules in Schedule B states:

The Response

(a) No later than twenty (20) days after the date of commencement of the administrative proceeding the Respondent shall submit a response to the Provider.

(b) The response including any annexes shall be submitted in electronic form and shall:

(i) Respond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name (This portion of the response shall comply with any word or page limit set forth in the Provider's Supplemental Rules.);

(ii) Provide the name, postal and email addresses, and the telephone and fax numbers of the Respondent (domain name holder) and of any representative authorised to act for the Respondent in the administrative proceeding;

(iii) Specify a preferred method for communications directed to the Respondent in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy (where electronic communications via the Internet are unavailable);

(iv) If Complainant has elected a single member panel in the Complaint (see Paragraph 3(b)(iv)), state whether Respondent elects instead to have the dispute decided by a three member panel;

(v) If either Complainant or Respondent elects a three member Panel, provide the names and contact details of three candidates to serve as one of the Panellists (these candidates may be drawn from any auDA approved Provider's list of Panellists);

(vi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;

(vii) State that a copy of the response has been sent or transmitted to the Complainant, in accordance with Paragraph 2(b); and

(viii) Conclude with the following statement followed by the signature of the Respondent or its authorised representative:

"Respondent agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute's resolution shall be solely against the complainant and waives all such claims and remedies against (a) the dispute resolution Provider and Panellists, except in the case of deliberate wrongdoing, (b) the registrar, (c) the registry administrator, and (d) auDA, as well as their directors, officers, employees, and agents."

"Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good faith and reasonable argument."; and

(ix) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.

(c) If Complainant has elected to have the dispute decided by a single member Panel and Respondent elects a three member Panel, Respondent shall be required to pay one-half of the applicable fee for a three member Panel as set forth in the Provider's Supplemental Rules. This payment shall be made together with the submission of the response to the Provider. In the event that the required payment is not made, the dispute shall be decided by a single member Panel.

(d) At the request of the Respondent, the Provider may, in exceptional cases, extend the period of time for the filing of the response. The period may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Provider.

(e) If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.


Resolution Institute Panellists

Please note that a Complainant cannot request a particular panellist for a single-member Panel. If a three-member Panel is requested, each party may suggest three panellists. RI is not bound to choose any of the panellists nominated by any of the parties but will endeavour to at least include one nominated panellist from each party's list if that panellist is otherwise eligible and available to be appointed.

Resolution Institute auDRP Panellists
Mr Philip Argy B.Com, LLB, FACS FRI Arb1 NMAS
Mr Gregory Burton SC BA (Hons), LLB (Hons), BCL
Dr Andrew Christie Ph.D., LL.M., LL.B. (Hons), B.Sc. Solicitor, Trade Marks Attorney, NMAS-accredited Mediator, Arbitrator.
Mr Alan Chuck BE (Hons), CIArb, Consulting Civil Engineer, Chartered Arbitrator, Adjudicator
Mr Scott Ellis Bachelor of Laws, Bachelor of Jurisprudence, Master of Laws, Professional Certificate in Arbitration General and Advanced
Mr Robert Hunt LLM, DipLaws, BSc(Eng), MIEAust, LFIAMA, FCIARrb, FACICA, CPEng(Ret), Grade 1 and Chartered Arbitrator, Court-appointed Referee Barrister, Mediator, Adjudicator and Expert Appraiser.
Mr Jon Kenfield LLB (Hons), CPA
Mr David Levin QC M.A. (Cantab), Barrister, Expert, Grade 1 Arbitrator, Mediator and Referee.
Mr Steve Lieblich BE (Hons), MSc, FIEAust, CPEng, GAICD, MIAMA. Consultant in business development, contracts and commercial management, relationship management and dispute resolution, including mediation, arbitration, expert determination and adjudication.
Mr Alan Limbury MA, MDR, Spec.Acc.Med. (Law Soc.NSW)
Mr Dennis Liner B.Juris, LLB
Mr John McDermott BA, LLB
Mr John McGruther Solicitor of the Supreme Courts of NSW, VIC, QLD, England & Wales
Ms Rowena McNally LLB
Mr Albert Monichino QC BEc, LLB (Hons) (Monash); LLM (Cambridge); Grad Dip Intell Prop Law. Albert practices as a Barrister, Arbitrator,and Mediator. Appointed Senior Counsel in 2010, he has over 25 years of experience in commercial dispute resolution. He is a Chartered Arbitrator and is accredited as an advanced mediator.
Mr Scott Pettersson LLB, Grad Dip Legal Practice
Mr Andrew Robertson

B Ec, LLB (Hons), GCLP, B Comm, Masters in Construction Law, FCPA, FCIArb, FIAMA, FRI, FACICA

Ms Christine Runnegar
Ms Jennifer Scott BA, Bachelor Legal Studies, Master of Laws, Master of Dispute Resolution, Undertaking Doctor of Juridicial Science 2006
Mr Michael Sweeney

LLB (Melb.) Barrister Arbitrator & Mediator, Victorian Bar. World Intellectual Property Organisation (WIPO) Panel Member. Grade 1 Arbitrator and Fellow, Resolution Institute. Fellow and Chartered Arbitrator, Chartered Institute of Arbitrators. Experienced in domain name dispute resolution, including AuDA domain.


Fees

Payment must accompany your application.

For a single member Panel

Number of Disputed Domain Names

Fee (AU$)

1-5

$2,000 plus GST of $200 (total $2,200)

6-10

$2,700 plus GST of $270 (total $2,970)

More than 10

To be decided in consultation with Resolution Institute

For a three member Panel

Number of Disputed Domain Names

Fee (AU$)

1-5

$4,500 plus GST of $450 (total $4,950)

6-10

$5,700 plus GST of $570 (total $6,270)

More than 10

To be decided in consultation with Resolution Institute


Decision archive

View previous decisions made by Panellists under the auDA Scheme.

auDA decision archive