WHY SHAKESPEARE WAS WRONG ABOUT DOMAIN NAMES
“What’s in a name? That which we call a rose by any other name would smell as sweet” Shakespeare wrote this verse over 400 hundred years ago, and we still hear it today. Unfortunately, when it comes to domain names, Shakespeare was dead wrong. In fact, contrary to what Elizabethan playwrights will tell you, names are essential, and the specifics of a name can be the determining factor in whether you can register a domain name or not.
But why does this matter? Shouldn’t we accept that perhaps the teachings in his poetry don’t fully cover the technicalities of dealing with new media? To put it simply, no. Shakespeare was wrong, and it must be said because sweeping changes are coming into play regarding how domain names are licensed and if you own a website, there is a good chance that it may affect you too.
What is a Domain Name?
A domain name is the string of words that defines the boundaries of the website. When you go to ‘www.google.com’, ‘google.com’ is the domain. It is the part of the web address which says what website you are on. Domain names are crucial, and without one, you don’t have a website.
To get even more specific, there are also second-level domains (2LDs) which go even further and can even state what country the website/company is based in, an example of a 2LD is ending a domain with ‘.com.au’.
The registration system to licence a domain name is different from the company, business, and trademark registration systems. To register a domain name, you must go through a domain name registrar. Domain names are not owned by registrants but rather licensed from a domain name registrar.
Once a licence is granted, the registrant has the exclusive right to use the name in that domain for a limited period (which can be renewed) under the terms of the licence. There is no property right in a domain name.
Who manages domains in Australia?
In Australia, 2LDs like ‘.com.au’ are managed by the .au Domain Administration (auDA). The auDA has government endorsement to be the regulator for the ‘.au’ domain. The auDA acts as both the administrator and registrar for the ‘.com.au’ domains, so if you need to find out who owns a ‘com.au’ website or how to deal with a domain issue, the auDA is always meant to be your first port of call.
Also worth remembering that in Australia, you cannot own a domain name. You simply lease it off the auDA for a set amount every year. This ensures that if the auDA determines that you have not used the website for appropriate reasons, they can remove access to the domain. It also allows them to control who is allowed to have a ‘.au’ domain name as well.
What will be changing
The auDA has announced several changes to the eligibility requirements of a ‘.au’ domain with the significant difference being that companies must have a substantial connection to Australia to be eligible for a ‘.au’ domain. Currently, the rules allow for an international company to hold a ‘.au’ domain if they have a trademark application filed with IP Australia. The new changes will limit this so that if the company is the trademark holder for a mark, and the company has no connection in Australia, then they can only apply for a domain name the same as their trademark.
The purpose of this is to safeguard the integrity of the ‘.au’ domain name and to prevent foreign entities with no Australian presence from unnecessarily claiming domain names in Australia.
To assist with this the auDA has also announced a restriction on a widespread industry practice, domain licensing. Now the most infamous version of domain licensing are the people will register a domain name that may have a fair amount of SEO and licence it to other businesses for a monthly or yearly fee. This will, under the new proposed auDA changes, will become prohibited. Instead, this kind of business will be relegated to more generic domains such as ones ending in ‘.com.’.
What does this mean?
This means that if you currently have a licence agreement set up which allows your holding company to licence the use of your domain name to your trading company these new changes might throw a spanner in the works. The new proposed rules will allow for a licence between the related corporate bodies to exist but only so far as both companies have an Australian presence. This means that if your holding company is based outside of Australia and does not have a significant Australian presence, then it may find that it is no longer allowed to hold the Australian domain name. This could happen even if your trading company has a presence in Australia.
Therefore, Shakespeare was wrong and being a foreign individual with no presence in Australia would be likely to lose any 2DL in Australia due to these new changes. Don’t be like Shakespeare and speak to your lawyer today.