.au domain names – Upcoming changes to complaints process

As discussed in our recent article New auDA Rules – Impact of Changes to Eligibility Requirements for .au Domain Names, the .au Domain Administration (auDA) has announced new rules for the .au country code Top Level Domain (ccTLD). These rules include a new four-step escalation process for resolving complaints relating to the Registrar of Record’s (Registrar’s) application of the new auDA rules, including an entity’s eligibility to hold a domain name. Complaints may only be made in relation to the responsibilities or obligations of a Registrant or Registrar under the new auDA rules. Under current auDA policies, complaints regarding the eligibility of a Registrant to hold a domain name are lodged directly with auDA and not the domain Registrar.

1. Complaint submitted to the Registrar

From 12 April 2021, any complaint, including a request to cancel a domain name licence, must first be lodged directly with the Registrar. Presently there are no rules or guidelines to indicate the form or manner in which a complaint must be lodged. An important exception to this new first step applies when a domain name licence is automatically deemed to be cancelled because the Registrant of the domain name ceases to exist, such as a company becoming deregistered.

Generally speaking, the Registrar will have 30 calendar days to resolve any complaint. Upon making its decision, the Registrar must inform the parties of:

• its decision
• its reasons for the decision
• the parties’ rights to have auDA review the decision.

2. Review by auDA

If a party is dissatisfied with the outcome of a Registrar’s decision (or any conduct of a Registrar), and all avenues of redress with the Registrar have been exhausted, that party may apply to auDA for a review of the decision (or conduct) by submitting copies of the original complaint and decision, together with an outline of the reason(s) for requesting the review and the remedies sought.

An application for review by auDA must be made:

• within five calendar days (non-extendable) from the date of the Registrar’s decision to cancel a licence; and
• 28 calendar days (extendable) for all other matters, including a decision to suspend a licence.

During this review period, any actions to be taken as determined by the Registrar, including cancellation of a domain name licence, is suspended. auDA has 28 days to make a decision, including to affirm, vary, revoke or remit the decision back to the Registrar for reconsideration. auDA’s decision, reasons and rights to seek further review should be provided to the parties as soon as possible.

3. Internal review

If a party is dissatisfied with the outcome of the review by auDA, it may seek an internal review. This is to be undertaken by a more senior member of auDA than the member who reviewed the Registrar’s decision. The timeframe to seek an internal review is:

• only 48 hours (non-extendable) from a decision to cancel a licence. This is a much shorter period than the current 14 days from the time that the Registrar applies the “pending delete” status to the domain name; and
• 28 calendar days for all other matters.

Again, any actions to be taken as determined by the original member of auDA during this process, will be suspended. The senior review officer is able to affirm, vary or revoke the earlier decision of auDA.

4. External review

The final avenue for review of any decision in relation to a complaint is an external review by a member of the Licence Review Panel. An application for an external review must be lodged within 10 calendar days of the internal review decision, together with the associated lodgement fee. The member has 10 calendar days, from being appointed, to affirm, set aside, substitute or remit the matter back to auDA for reconsideration. The review is based solely on the material before them. The member may no longer request further information from the Registrant and auDA, or conduct a hearing.

Process summary

How will the new complaints process affect you?

The new rules apply only to domain name licences registered, renewed or transferred on or after 12 April 2021. They will essentially allow an additional attempt to resolve any domain name dispute before invoking more traditional and expensive dispute mechanisms, such as through WIPO for adjudication under the auDRP, and without resorting to litigation. Complaints in relation to current domain name licences and that are not renewed or transferred as at 11 April 2021 should be filed with auDA.

If you have any queries about your eligibility to hold a .au, com.au, net.au, org.au, asn.au, id.au domain name, or for assistance in choosing, clearing, registering and renewing domain names and trade marks, please get in touch with Diana Bogunovic or Michael Seifried.