FAQ: recover a .au domain held passively in bad faith

When can I recover a .au domain held passively in bad faith?

Passive holding satisfies the bad-faith element when the overall circumstances leave no plausible legitimate explanation for the registration. A panel applying the auDRP will look at factors such as: how well-known the complainant's mark is, whether the registrant could plausibly have been unaware of it, whether the domain resolves to anything at all, and whether there is any conceivable good-faith use the registrant could make of the name without infringing the mark.

That final question is the crux. Where a mark is distinctive and the domain is an exact match or near-exact match, panels have consistently held that the absence of any use is itself evidence of bad-faith intent – sometimes described as "passive holding in bad faith" following the logic that only an infringer benefits from sitting on such a name. In our practice, the strongest passive-holding cases involve marks with broad recognition in Australia, domains registered shortly after a brand launch or media event, and a registrant who has made no credible attempt to explain the registration.

One caution: the auDRP's bad-faith limb is sometimes read as "registered or used" in bad faith rather than the UDRP's cumulative "registered and used." Treat any element-level nuance qualitatively and verify the current rules with counsel, as panel practice on this point is still developing.

Who can recover a .au domain held passively in bad faith?

Any complainant with trademark rights – registered or, in some readings of the auDRP, unregistered – that predate or relate to the disputed domain may file a complaint. There is no residency or citizenship requirement for a complainant under the auDRP itself. However, a successful transfer only lands the domain with the complainant if that person or entity meets the .au eligibility criteria maintained by the registry, auDA.

That eligibility point is frequently overlooked. An international brand owner who wins a transfer order must independently qualify to hold a .au domain – typically by demonstrating an Australian registered trademark, a company registered in Australia, or another qualifying connection. If the complainant does not qualify, the panel may order cancellation rather than transfer, which removes the name from the registrant but does not hand it to the brand owner. We regularly advise clients to confirm their auDA eligibility before filing, not after receiving a transfer order.

The condition also affects strategy. A brand owner who cannot meet the eligibility threshold may prefer to pursue the registrant for cancellation and simultaneously secure eligible registration through a subsidiary or licensee, or explore whether a court action in Australia could be structured differently.

Does auDRP or a court decide a .au dispute?

The auDRP is an administrative procedure governed by the registrar accreditation conditions set by auDA, the .au regulatory body. It produces a binding transfer or cancellation order unless the losing party files court proceedings within a defined window following the decision. It is not a court process and awards no monetary damages or costs.

Court action in Australia remains available either as an alternative to the auDRP or as a post-decision challenge. A complainant who also seeks damages for trademark infringement or passing off would need to litigate in the relevant Australian court, handled with local litigation counsel in Australia. The auDRP is generally the faster and less expensive route when the sole goal is domain recovery or removal.

For cross-zone situations – where the same registrant holds both a .au and a .com – the two disputes run on separate tracks. The .com would go to a UDRP panel (at WIPO, the Forum, CAC, or ADNDRC), while the .au follows the auDRP. A coordinated filing can sometimes be timed for efficiency, though each case is decided on its own record.

If you are weighing auDRP against court action for a .au passive-holding dispute, email info@cognomenlaw.com for an initial read on the available routes.

What evidence decides a passive-holding case?

Evidence of bad faith in a passive-holding matter is cumulative rather than direct. No single document proves intent. Instead, panels assemble a picture from several streams.

The complainant's trademark evidence comes first: registration certificates, dates, geographical scope, and any evidence of public recognition in Australia. The older and more distinctive the mark, the harder it is for a passive registrant to claim ignorance. Second, WHOIS or RDDS records showing the registration date relative to the brand's Australian public presence can be decisive – a domain registered the week after a product launch is very different from one that predates the brand by years. Third, screenshots (preserved with metadata) showing that the domain resolves to nothing, to a parking page, or to a redirection service are the core of the use – or non-use – evidence. Fourth, any prior communications with the registrant – an unanswered buyback inquiry, a demand letter that was ignored, or a response that included a price demand – can support the inference that the registration was made to extract value.

In a recent matter (a .au passive-holding complaint, autumn 2025), we assembled a record showing that the registrant had registered the exact brand name within days of a press release, had never activated the domain, and had ignored two written approaches. The panel ordered transfer on all three elements without a response being filed. That outcome reflected the evidence, not a guaranteed result: the facts lined up unusually cleanly.

What if the registrant does not respond?

A non-response does not mean automatic transfer. The panel still examines the complaint on its merits, and a deficient complaint will fail even if the registrant defaults. What the absence of a response does is remove the registrant's Paragraph 4(c) safe-harbor evidence from the record – there is no claim of bona fide use, no explanation of prior knowledge of the name, no legitimate noncommercial or fair use argument. Panels may draw reasonable inferences from that silence, but they are not required to accept every allegation as proven.

In practice, default rates in passive-holding disputes tend to be high. A registrant who holds a domain purely as a parking asset and has no genuine claim to the name often has little to gain from filing a response. That silence is a signal, but the complainant's evidence still has to carry the three-element test on its own. We have defended matters where a complainant's weak first element – thin or descriptive trademark rights – meant the panel refused transfer even without opposition.

Procedurally, the 20-day response window runs from formal commencement of the case, not from the date of filing. If no response is filed by that deadline, the panel proceeds on the complaint record alone.

What is the deadline once a case starts?

The respondent has 20 days to file a response after the case is formally commenced – a fixed deadline that mirrors the UDRP's own rules. Extensions are granted only in narrow circumstances, typically on a showing of exceptional cause. A registrant who misses the deadline can request late consideration, but the panel has discretion to refuse.

From the complainant's side, a standard auDRP case is normally decided within roughly two months of filing, comparable to a UDRP case, though the precise timeline will depend on panel availability and any procedural requests. If the registrant files a response and requests a three-member panel, the process will take somewhat longer than a single-panelist case.

After a decision, the registrar implements the transfer or cancellation within a defined waiting period, giving the losing registrant a short window to file court proceedings to stay the order. In our practice, stays are rarely sought in clear-cut passive-holding cases, but the window is real and must be accounted for in timing-sensitive brand protection plans.

Can the decision be appealed or challenged?

There is no internal appeal mechanism within the auDRP. A dissatisfied party – either a respondent who lost a transfer order or a complainant whose case was dismissed – must take the matter to a court of competent jurisdiction in Australia if they wish to challenge the outcome. Filing court proceedings within the post-decision window stays the registrar's implementation pending that litigation.

A complainant whose case was dismissed can, in theory, file a new complaint if materially different facts emerge, but panels are alert to attempts to re-litigate the same claim and will dismiss a refiled complaint that merely restates the original one. The stronger approach after a failed first case is a court action that can reach broader trademark or passing-off claims.

Reverse Domain Name Hijacking (RDNH) is also recognized under the auDRP. Where a complainant brings a case it should have known it could not win – for example, pressing bad-faith claims against a registrant who clearly predates the mark – the panel may make an RDNH finding. The finding is reputational and carries no monetary penalty, but it is published and signals bad-faith use of the procedure. We have successfully obtained RDNH findings for registrant clients in related gTLD disputes, and the same logic applies in the .au context.

To assess whether a prior auDRP filing missed a key element, or to plan a coordinated .au and .com recovery, reach us at info@cognomenlaw.com.