December 3, 2018
Can an Australian domain name be taken off you if it contains a trademark name and is being used with a fan or criticism site?
It's generally unwise to use a trademark name in an Australian domain (or any other extension for that matter), but some may feel if it is associated with a fan site or one critical of a company, they are entitled to use it under their rights to free speech*.
For example, registering a domain name with words left of the .com.au such as:
brand-fan
or
brand-sucks
Whether it's a fan or a "sucks" site, trademark owners can understandably get pretty touchy about the use of their name, so expect a virtual knock on your door should you choose to register such a domain. Let's say it then goes a few steps further - the company involved demands you relinquish the name and you refuse to. A next step could be for the trademark owner to submit a complaint under the .AU Dispute Resolution Policy (auDRP) .
So, what's the likely outcome? The quick answer is - it's not clear.
Regarding criticism sites, au Domain Administration (auDA) says there is yet to be an auDRP case that has addressed the issue of whether a registrant in such a situation has rights or legitimate interests in a domain name used for such a site. In relation to fan sites - it's the same situation.
In both scenarios, where a respondent attempted to raise such an argument it hasn't gone any further as the respondent has failed to provide evidence to support the intended use as a fan/criticism site, or because it was clear use of the domain name was commercial in nature - and that is a deal-breaker.
So, the best advice is to probably is to still avoid using trademark names for such sites unless you're willing to risk what may have been a lot of hard work on your part to build it up, only to sail into unknown waters - waters that could get quite stormy.
For fan sites, something you can do is to contact the trademark owner and ask their permission to use such a name - and if they are agreeable, ensure you get their agreement in writing. As for criticism sites, it will come as no surprise that approach probably won't be successful.
Pick up some tips for choosing a domain name.
*Trivia: The Australian Constitution does not explicitly protect freedom of expression and Australia does not have a Bill of Rights.
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