• There are no proprietary interests in a domain name. It is a licence granted by the domain registrar for the registrant to use the domain name for a limited time, with the right to renew. In Australia, the licence for the domain name is one to five years.
  • .au Domain Administration (auDA) is the peak body for the .au domain in Australia.
  • The Internet Corporation for Assigned Names and Numbers (ICANN) is the peak body for .com, .org. or .net domains.
  • There are different rules for eligibility for certain domain names, such as .au or .org. 

Registering a Domain Name in Australia

Domain names are registered on a first-come, first-served basis, subject to any eligibility criteria. For example, the eligibility criteria requires that a .org.au domain name can only be registered by Australian non-commercial organisations.

Process of Registering a Domain Name

The process of registering a domain name can be made easier by doing your research and setting yourself a budget. Firstly, you should check that another business does not use the domain name. You do not want to register a domain name that is the same as another business’ trading name or infringes on a trade mark. You can search the availability of business names and domain names at the government website, and search the trade marks register, to find this information. Additionally, you will want to pick a domain name that is short, easily identifiable and represents your brand so that customers can search for it easily. 

Once you have decided on your domain name, you may need to purchase the domain name from a registrar or reseller. You can do this yourself or using a domain broker. 

Eligibility for Registrants

For Australian domain names that end in .com.au, there are eligibility requirements. You will need to be:

  • trading under a business name registered on the national business register;
  • an Australian registered company;
  • an Australian partnership;
  • the owner or applicant for an Australian Registered Trade Mark;
  • an incorporated Association or an Australian Statutory body registered in any Australian State or Territory; or
  • a foreign company licensed to trade in Australia.

There are various requirements for other .au domain names (e.g. .org.au or .net.au) set out by auDA. The auDA is the authority for .au domains in Australia. You cannot register a domain through auDA. Rather, you can register through a list of accredited registrars. Different registration processes apply for .gov.au and .edu.au. Further, auDA has the right to revoke a domain name licence if it does not meet the eligibility criteria. 

Negotiating the Price 

Negotiating the price can be a tricky part of the domain name purchasing process. Here are some simple steps to consider:

  • consider a budget. You should know how much you are willing to pay and stick to the planned budget;
  • research the owner of the domain name using the auDA Domain Name lookup so that you know who to get in contact with;
  • you can negotiate a price for the purchase of the domain name with the other party. You can do this yourself or have a broker assist;
  • pay for the domain. It is recommended to use an official escrow service to pay for the domain as this will add a level of protection against scammers. Further, this will ensure that a third party verifies the payment, and the funds will not be released to the seller until you have received the domain rights; and
  • you will obtain the domain name password (EPP) from the registered domain owner and can begin building your website!

Domain Name Disputes

Where two parties are in dispute over a domain name, there are two common methods of resolving domain name disputes:

  • commencing legal proceedings for an infringement of a registered trade mark; or
  • lodging a complaint under the relevant Domain Name Policy. This will be UDRP for all common top-level domains (e.g. .com, .net or .org), or auDRP for any domain name ending in .au. 

Before proceeding down the legal pathway, you may want to try and negotiate with the other party to come to a resolution. This will often save time and money.

Trade Mark Infringement

The use of a trade mark in a domain name may infringe a registered trade mark or breach a trade mark owner’s common law rights. You can avoid this by searching for your desired domain name in the trade marks register before purchasing the domain name. 

If you have a trade mark, it does not mean you have a proprietary interest over the corresponding domain name. However, you may have rights if you believe that a domain name infringes your trade mark rights. There are a number of things to consider in relation to trade mark infringement, such as: 

  • how long the parties have been trading; and 
  • whether the goods or services they sell are substantially similar.

Dispute Resolution for .com, .org, or .net domains

The Uniform Dispute Resolution Policy (UDRP), published by ICANN, requires registrars to resolve domain name disputes by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name.

To invoke the policy, a trade mark owner should either:

  • file a complaint in a court of proper jurisdiction against the domain-name holder (or where appropriate an in-rem action concerning the domain name); or
  • submit a complaint to an approved dispute-resolution service provider, in cases of abusive registration.

Dispute Resolution for .au domains

The .au Dispute Resolution Policy is modelled on the UDRP. The auDRP gives protection against domain names that are registered legitimately but then subsequently used in bad faith. Also, the auDRP uses the term ‘name’ instead of ‘service mark’, which is wider in definition to include a person, company, business or other legal or trading name. 

How can LegalVision help me?

If you require assistance with a domain name or trade mark dispute, please contact our experienced Intellectual Property team at LegalVision, on 1800 534 315. 

Frequently Asked Questions about Domain Names

What is cybersquatting?

An unauthorised party with no legitimate interest in a domain registers a domain name identical or similar to another business’s trade mark or trading name. This is usually for commercial gain, to resell back to the legitimate owner, or to park the domain on a page that generates revenue through advertisements.

How much does it cost to register a domain name?

This will depend on the registrar you use, the type of domain extension and the period of registration.

Can passing off apply for domain names?

The common law tort of passing off may be available to protect holders of unregistered marks from abusive and deceptive domain name registration. It is advisable to contact an intellectual property lawyer to determine your rights.

What is phishing?

Phishing is a form of identity theft where fake emails and websites are designed to look like legitimate businesses.

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