response to auDA Complaint

[highnfar]

Hi guys,

auDA issued another complaint to us, asking us to explain our close and substantial connection to 110 domain names registered under our name. They said "auDA is conducting an audit of the domain names held by the registrant of the domain names listed above. We are unable to determine the registrant's eligibility from the information in the .au database or via any information on the registrant's websites.

Paragraph 2 of Schedule C of the Domain Name Eligibility and Allocation Policy Rules for the Open 2LDs (2012-04) at http://www.auda.org.au/policies/auda-2012-04/ states that a com.au domain name must be:
a) an exact match, abbreviation or acronym of the registrant's name or trademark; or
b) otherwise closely and substantially connected to the registrant, in accordance with the categories of "close and substantial connection" set out in the Guidelines on the Interpretation of Policy Rules for the open 2LDs.

Under auDA policy a close and substantial connection is established where, for example, the domain name refers to a product or service that the registrant provides.

Please contact the current registrant of the domain names listed above and, ask them to explain their close and substantial connection to each domain name."



As we are running Australian Chinese online communities, to provide information for users to know Australia and living in Australia. All of our domain names registered were carefully chosen to match and highly related to our current or planning products, projects and information services. Only few of the related projects have been cancelled after domain name registration, but all of the domains were related to our projects. Can anyone suggest how to repond to their complaint? Do we have to prepare detailed project information for each related domain name? Or just give them brief description? 110 domain name is a huge work...

I also found one domain name on the list they sent us isn't ours, and they asking us to provide substantial connection infor... What the hell...


Thank you for help!

 

[neddy]

auDA issued another complaint to us, asking us to explain our close and substantial connection to 110 domain names registered under our name. They said "auDA is conducting an audit of the domain names held by the registrant of the domain names listed above. We are unable to determine the registrant's eligibility from the information in the .au database or via any information on the registrant's websites.

From your first sentence, it appears as if you have received a previous complaint? Is that correct?

The problem that arises when you get a number of complaints is that auDA will probably do an audit of your portfolio.

Here is a similar case which was covered on DNT a while back.

https://www.dntrade.com.au/general-domain-discussion/1524-power-auda.html

My advice to you is to get urgent legal advice before responding to auDA.

 

[highnfar]

Thanks neddy.

You are right, at first we received a sigle domain complaint. It's few weeks ago. This domain name was registered by one of our partners, before he joined our company. By mistake, the ABN he used to register this domain name was expired. And none of us recognized the ABN was not eligible any more and forgot to update until auDA sent a complaint email to him. So we transferred the domain name into VentraIP system in order to do the COR there for free. We just want to fix this mistake as soon as possible and as cheap as possible. But auDA think the transfer and COR process was in breach of the Transfers (Change of Registrar of Record) Policy (2003-03) at http://www.auda.org.au/policies/auda-2003-03/ and requested a copy of our company/business/ABN registration certificate including the current list of director(s)/office holder(s)/owner(s) and in particular the listed registrant contact's authority and relationship with the company/business/ABN.

We have already sent the following documents to them several times, but they still kept asking for the same documents in each email again and again and again... The negotiation with auDA was hopeless, they just ignor my documents and asking for the same documents that we have already submitted. And the domain name is in pending-delete status, our website is inaccessable which has already affected our normal sales.

 

[neddy]

Ok, so my previous advice applies.

Do not speak or write to auDA yourself - get legal advice from someone who understands the process. That is so important.

You obviously have a big investment there, and you need to rescue the situation before it is too late.

If there are genuine problems or complications, then auDA will always listen (and more often than not allow you to rectify things). But you need to present a logical case.

As for eligibility, it is vital to get this right. Not to do so will see you lose the domains.

Contact Erhan from Cooper Mills in the first instance - you can PM him or ring him. If he can't help you due to workload, then I'm sure he will put you onto someone who can help.

Good luck.

 

[Mick]

The negotiation with auDA was hopeless, they just ignor my documents and asking for the same documents that we have already submitted. And the domain name is in pending-delete status, our website is inaccessable which has already affected our normal sales.

This is one of the reasons why personally I stay away from .au domains because of auDA's known ignorance of any complaints where the registrant is in the right but they just ignore the facts.

The above views are mine personally and don't reflect the position of VentraIP

 

[highnfar]

Thanks neddy. Erhan can't help, as he is a direct of auDA. But he recommended Victor Ng of Markwell Lawyers. I will sure contact Victor to seek legal help.

 

[Ashman]

We have already sent the following documents to them several times, but they still kept asking for the same documents in each email again and again and again... The negotiation with auDA was hopeless, they just ignor my documents and asking for the same documents that we have already submitted. And the domain name is in pending-delete status, our website is inaccessable which has already affected our normal sales.

Having established itself as an Australian company under Australian law, auDA must conduct its operations in a manner consistent with that required under the law. One of the most important aspects of this accountability is the obligations of Directors of the company.

Directors’ obligations include: Duties of Due Diligence and Care.

Breaches of these duties are a serious matter under the law, so if you believe that auDA has not taken reasonable care or due diligence to investigate your response I would send them a reminder as to their lawful obligations.

 

[highnfar]

Thanks Mick to point out this fact. What's the word to describe, arbitrary? Even ATO is better, at least ATO auditors listen what you said carefully.

 

[neddy]

This is one of the reasons why personally I stay away from .au domains because of auDA's known ignorance of any complaints where the registrant is in the right but they just ignore the facts.

My experience has been totally the opposite Mick. I find Vanessa (and others) great to deal with.

As with most things in life, I guess it depends on how you approach people / situations.

 

[highnfar]

Thanks Ashman. I will PM you to discuss the possibility.

 

[neddy]

Thanks neddy. Erhan can't help, as he is a direct of auDA. But he recommended Victor Ng of Markwell Lawyers. I will sure contact Victor to seek legal help.

Victor is a good guy. Let him try and sort it out for you. It could be the best money you have ever spent.

Don't get embroiled in issuing threats yourself. That could only backfire on you.

 

[Mick]

As with most things in life, I guess it depends on how you approach people / situations.

Of course, but when the information is supplied and is in line with policies but still gets rejected and you just end up getting the run around it makes no sense how you're suppose to get a reasonable answer to the process. Which was my point in that I stay away from domains with such policies due to past experiences.

The above views are mine personally and don't reflect the position of VentraIP

 

[neddy]

Of course, but when the information is supplied and is in line with policies but still gets rejected and you just end up getting the run around it makes no sense how you're suppose to get a reasonable answer to the process. Which was my point in that I stay away from domains with such policies due to past experiences.

Fair enough Mick.

You do know that they now have internal appeal processes if you feel that you haven't been treated fairly?

This is from their blog - I recommend every domain owner read it.

http://blog.auda.org.au/tag/monetisation/

We give all registrants a reasonable opportunity to respond to a complaint, be it during the investigation period before we make our determination, and/or during the 14 day pending delete period after the domain name has been deleted (policy-deleted domain names can be reinstated right up until they are due to drop).

In addition, we advise all registrants of their right to a review – firstly an internal review by auDA senior management, and then access to an independent review by the Registrant Review Panel.

This is the current policy: http://www.auda.org.au/policies/auda-2012-01/

 

[highnfar]

Hi neddy, any comment for this:

In the email auDA said "auDA is conducting an audit of the domain names held by the registrant of the domain names listed above. We are unable to determine the registrant's eligibility from the information in the .au database or via any information on the registrant's websites."

But after carefully reviewing the domain list they sent to me, I found ONE domain is not belong to us, and of course eligible to its registrant; TWO domains are exactly match our business name; Many domains have highly related website contents; All of the domain information (Company/ABN/Contact etc) can be retrieved from auDA database. Which means the auDA auditor didn't check the domain elegibility of each domain on the list at all!

 

[neddy]

Hi neddy, any comment for this:

Speak to Victor.

 

[Ashman]

It would seem to be in auDA interests to have complaints go to their internal review process as they make about $250 for the review application and correct me if I'm wrong that fee used to be $2500.

 

[neddy]

It would seem to be in auDA interests to have complaints go to their internal review process as they make about $250 for the review application and correct me if I'm wrong that fee used to be $2500.

I will correct you.

This internal review process is "fairly new" in auDA terms. It is a great step to have imho because it allows a party a right of appeal with regards an auDA decision relating to policy.
e.g. If highnfar does not get a favourable decision, he could utilise this fairly inexpensive process to have the initial decision reviewed.

However it differs totally from the auDRP process (which does cost $2000 for a single member panel; and $4500 for a three member panel).

(Bolding below is mine).

1.2 The purpose of the auDRP is to provide a cheaper, speedier alternative to litigation for the resolution of disputes between the registrant of a .au domain name and a party with competing rights in the domain name.http://www.auda.org.au/audrp/audrp-overview/

http://www.auda.org.au/audrp/audrp-overview/

 

[Ashman]

Neddy does the current internal review process cost $250? I also remember there was once a fee of $2500 that was reduced 10 fold to $250. Wasn't that also a fee for the internal review process?

 

[neddy]

Neddy does the current internal review process cost $250?

Yes. As per the policy link I previously posted.

The important thing to note is that there is a HUGE difference between an appeal against an auDA decision - versus an auDRP application by an aggrieved 3rd party.

 

[Ashman]

Neddy was there an auDA fee of $2500 that was reduced to $250? I cannot recall what the fee was for but I recall that an auDA fee was slashed after if was found to be inequitable. Do you recall what that fee was for?