Domain Names: how close does the connection need to be?

In Loans and Debt Assistance Incorporated v .auDA*, the Supreme Court of New South Wales dismissed the Registrants’ request for an injunction to restrain

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the .au Domain Administration (auDA), from deleting 42 domain names registered in the Registrants’ names on the ground that the domain names were not closely or substantially connected to the Registrants.

Background

The Registrants’ domain names were mainly in respect of debt or consumer products (eg. <homeloan.asn.au>, <money.org.au> and <mortgage.org.au>). Upon registration, the Registrants had completed a standard form agreement with auDA, which incorporated auDA’s policies, including its Guidelines, available online here. The Guidelines provided that registrants must have a “close and substantial connection” to their domain names.

auDA received a complaint that one of the Registrants’ domain names (<carloans.org.au>) was a “clear breach of policy”. Following correspondence between the parties, auDA notified the Registrants that their domain names were to be deleted.

Proceedings

The Registrants sought an injunction to restrain auDA from deleting the domain names. They claimed that, pursuant to section 10.6 of the Guidelines, they were eligible registrants as they had a “close or substantial connection” to their 42 domain names as they provided the service in question (10.6(a)), or facilitated, taught or trained the activity involved (10.6(d)).

auDA submitted that there was not a “close and substantial connection” because:

a connection between a website’s content and a domain name is not indicative of a “close and substantial connection” between the domain name and the registrant; and
the registrant must have some “real-world presence and activity” and the “services” must be more than the websites of the domain names.

The Court discussed the definition of “service” and determined that the “service” that the Registrants were purporting to provide was the provision of advice or information. In light of this, the Court held that:

names relating to this type of “service” would be subject to statutory and regulatory requirements, which the Registrants did not satisfy;
names such as bankruptcy, carloan, mortgage, refinance, shares (and similar) are not “services”, nor are names such as books, hotel, phones and tennis;
names that were described as “to be developed” had no relevant “service”;
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and
in regards to the name “mortgagecalculator”, in the absence of any evidence to the contrary, this was a product, and as such was not covered by section 10.6 of the Guidelines.

The Registrants’ argument under 10.6(d) also failed. The Court held that an “activity” is “a thing that a person or group does or has done”. As the Registrants do not provide finance, car loans or any other thing referred to in the domain names, they do not have a “close and substantial connection” to the domain names.

The Court held that the domain names were not closely or substantially connected to the Registrants and dismissed the summons with costs.

Implications

It is not sufficient for registrants to argue a close and substantial connection to their domain name by mere virtue of the content of their website.

The requirements are more stringent than an alleged connection based on the future ideas or concepts of the registrant. A registrant must have a clear connection to the domain name. This may be evidenced through their current services, activities or purposes as provided under their Constitution, or via a registered trademark or business name.

These eligibility rules do not apply to .com domain names.

* Loans and Debt Assistance Incorporated & Anor v .au Domain Administration Limited [2012] NSWSC 558 (24 May 2012)