It does seem obvious that auDRP decisions would have to be made in
respect of auDA policies but this is not so. There are significant
differences between the policies which govern the registration of a
domain name and the auDRP. This has been noted in a couple of decisions.
Just one example of this, is that you cannot register a .com.au domain
name on the basis of an unregistered / common law trademark, however you
can lose a domain name under the auDRP on this basis.
To clarify the situation, there are two separate issues
1) auDRP decisions can contradict auDA policy as they are based on two
different criteria
2) if the auDRP Rules are broken there is no mechanism in place to deal
with it
In regards the first point, just because a panellist contradicts auDA
policy doesn't necessarily mean they have breached the auDRP Rules.
However, it does create a precedent which effectively nullifies the auDA
policy. In regards the second point, I have received a number of emails
about this topic, and one of the best suggestions I've read so far is
that there should be a Domain Name Ombudsman to handle such situations.
The full quotations from the decision are:
/The Complainant having clearly established rights in their name and
trademark, has a right to register corresponding domain names over and
above anyone else./
/The Respondent asserts that it does not have to show a greater right or
interest in the Domain Name than the Complainant, as domain names are
registered on a first-come, first-served basis. However, this is clearly
not the case as it would defeat the purpose of the auDRP./
These completely contradict paragraph 2.3 of the Domain Name Eligibility
and Allocation Policy Rules for the Open 2LDs (2005-01).
Andrew
Ian Smith wrote:
I read your previous post, and read through the AuDRP rules last night,
and read a few decisions. It seems obvious to me that decisions would
have to be made in respect to the AuDA Policies, however that's not so
clearly or explicitly stated as far as I can tell, but I'm no lawyer.
The closest it comes is to suggest that the Registrant Agreement is
what governs the process, and that of course is made with respect to
AuDA Policies, so it's difficult to see how a Panellist could in any way
'overrule' or 'invalidate' AuDA's Policies in making any determination.
However, without knowing any of the details of the unpublished Decision
you refer to, it's not possible to come to any sort of conclusion about
the concerns you are raising. I assume that it must be one of the three
cases listed at http://www.auda.org.au/audrp/current-proceedings/ ?
So it's not really possible to comment on your assertions until we have
it from the horse's mouth, so to speak, to see if it's an ass instead.
Cheers, Ian
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