In 2016, the governing body of .au domain names, the .au Domain Administration (auDA), initially approved the use of second level domain names in the .au domain namespace, also known as ‘direct registration’. Earlier in 2019, auDA confirmed it would proceed and second level .au domain names were expected to be available for registration later this year, from Q4 2019. A recent announcement from auDA advised that this will be delayed again for further public consultation, and is now likely to occur in the first half of 2020.
Notwithstanding this delay, brand owners and current domain name registrants should look into taking action to secure any relevant .au domain names, and take any necessary steps to prepare for the introduction of direct registration.
What exactly is second level registration?
Right now, only third level domain names such as example.com.au, example.net.au and example.org.au can be registered by individuals or entities with an Australian presence (such as being an Australian resident or company, or the owner of an Australian word trade mark) that meet certain eligibility requirements. Put simply, second level registration, or ‘direct’ registration, will allow users to register a domain name immediately before the .au, allowing domain name registrations such as example.au.
This is a big change for the .au namespace, and brings the Australian internet community in line with other similar namespaces such as .nz and .uk.
What does this mean?
Existing registrants will not need to worry: the introduction of direct registrations will not affect any current registrations, and any .com/net/org,au domain name registrations will be maintained.
However, auDA has also proposed changes to domain name eligibility requirements, which will make it easier to register .au domain names. Whilst auDA currently requires registrants of .com.au and .net.au domain names to have a ‘connection’ with the chosen domain name, such as a business name registration, this is no longer a requirement for direct registration. This means that as long as the ‘Australian Presence’ requirement is satisfied, persons and entities can potentially register any .au domain name at the second level, subject to the auDA priority rules for existing registrants, and any other third party rights. By lowering the threshold, it is will be easier for both brand owners, but also unknown third parties, to acquire and maintain domain name registrations in the .au namespace.
Recognising that existing third level domain name registrants will want the opportunity to register the corresponding second level domain name, auDA has proposed rules to manage the introduction of the new domain names, named the ‘.au Namespace Implementation Rules’. The draft rules can be accessed here.
There will be a priority registration process, with domain names assigned a ‘Priority Status’, being:
- Category 1: Where the registered domain name (e.g. example.com.au) was created before the cut-off date, proposed to be 4 February 2018;
- Category 2: Where the registered domain name was created between the cut-off date and prior to the commencement date; and
- General Availability: Where there is no registered domain name prior to the commencement date, these will be available from the commencement date on a first come, first served basis.
A domain name that is eligible for ‘Priority Status’ will be available for registration by the registrant of that domain name, and registrants are required to apply for ‘Priority Status’ to reserve their domain names. auDA has not yet advised as to what’s involved in the application process, but it should be noted that reservation applies only to exact matches of current eligible domain name registrations, for instance, example.au will be reserved for the registrant of example.com.au.
Applications for ‘Priority Status’ are required to be made to an accredited domain name registrar (such as Netregistry) within 180 days of the commencement of the rules (the date has not yet been announced). Once a registrant files an application for ‘Priority Status’, they will not be able to update the registrant information or transfer the domain name during this period.
Rules for competing applications
As eligible registrants can have registrations for .com.au, .net.au and .org.au domain names at the third level, this can result in competing claims for the exact .au match. For instance the registrants for example.com.au, example.net.au and example.org.au may all be able to apply for ‘Priority Status’ for example.au, but only one registrant will be able to register example.au, so who gets the domain name? To manage this, the draft rules cover the following processes for competing claims for the exact .au match:
- Where there are multiple domain names eligible for Priority Status (such as example.com.au and example.net.au), if each priority falls into different categories, the application for Priority Status Category 1 will prevail. If the Category 1 registrant does not apply for the domain name, the priority will default to Category 2;
- If there are multiple applications for a domain name claiming Category 1, the registrants will be required to negotiate between them which party is able to register the exact second level .au match. Where the parties are unable to agree, neither one will be able to register the .au domain name, but both parties will be required to pay an ‘annual application renewal fee’ for the domain name. Should one party fail to pay this fee, or no longer meets the eligibility criteria, then the application will lapse and the other party will be able to claim the direct registration; and
- Where there are multiple claims for Priority Status Category 2, the party with the earliest creation date of the eligible third level domain name will be entitled to register the exact .au match.
So what is next?
Although the recently announced delay by auDA means that .au second level domain names are unlikely to be able to be registered this year, the delay does give existing domain name registrants and brand owners more time to consider their options in this regard. Whilst waiting for further announcements from auDA, brand owners should review their current domain name registrations, and also consider registering any relevant .com.au and .net.au domain names to have the option of applying for Priority Status (noting this will be Category 2 under the current suggested cut-off date). We recommend brand owners consider applying for Priority Status if available, and prepare to register any .au domain names, if only to prevent unknown third parties from securing potentially relevant domain names for key brands.
Noting the recent announcement, it is possible that there will be further changes to the proposed scheme following the results of the additional consultation period. In the meantime, HWL Ebsworth can provide further guidance or assistance on how to prepare for the introduction of .au direct registration, and provide advice regarding how key brands should be protected.
This article was written by Luke Dale, Partner and Mary Szumylo, Solicitor.