I generally agree with your points Mark

All except that I strongly believe it worthwhile taking things further
on the basis that the entity that held the licence for the domain is no
longer registered - therefore how did Dytor and Yates Real Estate obtain
the domain when they are allegedly not the registrant?  

How did they obtain it?
How does that fit with the eligibility rules? - The rules do have some
provisions to protect against and prevent the transfer of licence etc

Perhaps the registrant business flogged it off to them for some $ before
closing shop?

Phil Wright
 

-----Original Message-----
From: Mark Hughes [mailto:effectivebusiness§pplications.com.au] 
Sent: Friday, January 10, 2003 1:50 AM
To: dns§lists.auda.org.au
Subject: RE: [DNS] can anyone help me out with this query?

Comments on a couple of different postings:


> Under common law they can't trade under that
> name since my clients own the business name.

Your clients may own the business & company names "Gold Coast Homes",
but
given current practice, someone else could use "Smith's Gold Coast
Homes" or
"Gold Coast Homes Experts" or a similar variation.  It appears to be
common
practice for the Business Names folks to accept the addition of a single
word - especially the addition of a person's name - as a difference
substantive enough to get a new Business Name issued that is in other
respects similar to an existing one.


> the domain name matched a 'brand name' of his company's, although I
was
under
> the impression that brand names must be registered with the
government.

No, brands don't have to be registered with the government.



Note that these issues are an inevitable consequence of the decision to
include "close and substantial connection" as an eligibility criteria
for
domain names in .au.

Since:

 a) "close and substantial connection" has no objective definition
 b) the "close and substantial connection" criteria specifically
includes
products and services - e.g. brands
 c) a common occurrence in product / service brand development is that
brand
development before actual launch can be lengthy in time, and done in
secret

Then its generally impractical to challenge someone's eligibility for a
.au
domain name (assuming its not a bad faith / passing off situation).  The
domain name holder can retreat behind the "its a new brand currently
under
development - the details are commercial in confidence".




> The people who own the domain are using it.
> It is goldcoasthomes.com.au.
> Their business is called Dytor and Yates Real Estate.

For example, applying the "close and substantial connection" criteria to
the
domain name goldcoasthomes.com.au...........the com.au policy says:

c) be otherwise closely and substantially connected to the registrant,
because the domain name refers to:
(i) a product that the registrant manufactures or sells; or
(ii) a service that the registrant provides;


So y'all can ask yourselves the question.....are gold coast homes a
product
or service that Dytor and Yates Real Estate sells / provides?

Hell yes!  Gold coast homes are EXACTLY the product / service that Dytor
and
Yates Real Estate sells / provides.  So according to the existing policy
for
com.au, developed by the advisory panel and listed on the auDA web site,
then Dytor and Yates Real Estate is eligible for the domain name
goldcoasthomes.com.au.



When you think about it for a minute or two, you realise that probably
>98%
of domain names in use represent / are clearly related to a product or
service that the registrant provides (otherwise the Registrant would
have
little interest in that domain name).  So forget about the "company name
/
business name" criteria - the "close and substantial connection" clause
covers almost all .au domain names.  All of this was inevitable once the
"close and substantial" clause was accepted as an eligibility criteria
in
the .au namespace.


Regards, Mark.







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