1 April 2021
What you need to know
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New rules governing domain names ending in .au will commence on 12 April 2021.
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The new rules introduce a range of changes, including changes to the eligibility requirements for .com.au, .net.au, .org.au and .id.au domains, and a new regulatory regime.
What you need to do
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Before 12 April 2021, if you are the registrant of any .au domain names, check that you comply with the new rules, including that you will meet the new eligibility requirements.
The Commonwealth Government-endorsed, not for profit organisation .au Domain Administration Limited (auDA) develops and administers the rules for all domains in the .au country code Top Level Domain (ccTLD); in other words all domains ending in .au.
Late last year, auDA announced new rules for all domain names in the .au ccTLD (new Rules). The new Rules commence on 12 April 2021 (with some limited exceptions), and will apply to all ".au" domain names registered, transferred, or renewed on or after this date.
Set out below is a summary of the key changes in the new Rules.
New licensing rules
Prohibitions on selling, renting, leasing domains and subdomains
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WHAT YOU NEED TO KNOW |
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Under the new Rules, .au domain name registrants are prohibited from:
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Domain name registrants are entities or individuals who have been issued a licence to use the domain name system (DNS) with a domain name, and are formally recorded as the registrant for that domain name, including in the WHOIS.
The new prohibitions are intended to preserve trust in the .au ccTLD, by ensuring the data in the WHOIS reflects the individuals using each domain name. By prohibiting the selling, renting or leasing of sub-domains, the new rules also seek to prevent registrants from operating private registries.
There is an exception to the new prohibition on renting or leasing domain names as between related bodies. The exception allows companies to apply for and hold .au domain name licences on behalf of related bodies corporate with an Australian presence.
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WHAT YOU NEED TO DO |
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Transfer any domain licences used by unrelated third parties, through the domain name registrar, to the party using the domain name.* |
* The new domain name registrant must be eligible to hold the licence at the date of transfer. This requires that the individual meet the Australian presence requirement (discussed further below).
New licence terms and conditions for .au domains
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WHAT YOU NEED TO KNOW |
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The new Rules amend the terms and conditions for holding a domain name licence to require that registrants:
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Under the new eligibility rules, deregistered companies and the deceased are not able to hold a licence.
The new warranties also include that the registrant does not, and will not, use the domain name licence for an unlawful, illegal or fraudulent purpose.
The new consent requirements empower auDA to use collected information for the purpose of data analytics to inform policy development, registry management and service delivery
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WHAT YOU NEED TO DO |
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Transfer any domain licences held by now-deregistered companies to a registered company or individual. Ensure that any information that may be collected by auDA will not breach international privacy laws. |
New rules governing activity on subdomains
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WHAT YOU NEED TO KNOW |
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A person or entity holding a domain name licence will be responsible for activity occurring on a sub-domain. |
Under the new Rules, registrants of a domain name licence are responsible for activity occurring on a sub-domain. Previously, if a sub-domain breached the rules but the parent domain was compliant, auDA could take no action.
The new Rules governing subdomain activity align neatly with the new rule prohibiting the sale, rental, or leasing of sub-domains to third parties (as discussed above).
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WHAT YOU NEED TO DO |
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Ensure that any subdomain licence agreements between bodies corporate require compliance with auDA rules. |
Changes to the eligibility for com.au and net.au domains based on an Australian trade mark
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WHAT YOU NEED TO KNOW |
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For foreign entities using an Australian trade mark as the basis for meeting the Australian presence requirement to hold a domain name licence, the domain name must be an exact match to the words the subject matter of the Australian trade mark. |
A company or individual must meet the Australian presence requirement to be eligible to hold a domain name in the .au ccTLD. The Australian presence requirement can be met by holding a pending or registered Australian trade mark.
Under the new Rules, if a foreign registrant is using an Australian Trade Mark as the basis for meeting the Australian presence requirement, the target domain name must be an "exact match" to the words the subject matter of the Australian trade mark. Previously, the domain name needed only be "closely and substantially connected" to the Australian trade mark.
The new Rules define an "exact match" to mean:
"… that the domain name being applied for is identical to the words which are the subject of an Australian Trade Mark. The domain name must include all the words in the order in which they appear in the Australian Trade Mark, excluding:
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DNS identifiers such as com.au;
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punctuation marks such as an exclamation point or an apostrophe;
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articles such as ‘a’, ‘the’, ‘and ’or ‘of’; and
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ampersands."
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WHAT YOU NEED TO DO |
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For foreign entities using an Australian trade mark as the basis for meeting the Australian presence requirement for a domain name licence:
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Other rule changes
Other changes to the new Rules, including changes to the eligibility criteria for State and Territory namespaces (eg. .vic.au, .act.au), changes to the way in which auDA may act on a request from an enforcement body or intelligence agency, and changes to the complaints process, can be found on auDA's website https://www.auda.org.au/au-domain-names/new-au-licensing-rules
For further information, please contact:
Anita Cade, Partner, Ashurst
anita.cade@ashurst.com
