Step-by-step: use mediation before a .au domain decision

Step-by-step: use mediation before a .au domain decision. UDRP and ccTLD domain recovery and defense across .au. Email the firm to assess your case.

A rival registers yourbrand.com.au, points it at a competitor's landing page, and refuses to negotiate. You want the name back. Before a formal auDRP panel ever reads your complaint, Australian procedure offers something the UDRP does not: a structured mediation window where the dispute can be resolved without a formal decision at all.

The .au dispute procedure – administered under the auDRP, Australia's adaptation of the UDRP – requires parties to attempt resolution, and mediation sits at the heart of that process. A complainant must satisfy the three auDRP elements closely tracking the UDRP's Paragraph 4(a) test, but the bad-faith limb is read in some respects as "registered or used" abusively, which can lower the evidentiary bar. Mediation typically runs for a defined window before a panel renders a formal decision, giving both sides a genuine chance to settle on terms a panel cannot award – including agreed pricing, a phased transfer, or a mutual licence.

This guide walks every step: eligibility, pre-filing preparation, how to trigger and manage the mediation stage, what happens if it fails, and the evidence that decides the outcome when a panel does decide.

What Is the auDRP and Who Can Use It?

The auDRP is Australia's adaptation of the ICANN Uniform Domain Name Dispute Resolution Policy, governing .com.au, .net.au, .org.au, .asn.au, and related second-level zones. It closely tracks the three UDRP elements but contains local eligibility rules and procedural nuances that make it a distinct animal. Understanding those differences is the first step – and skipping it is the trap that sinks otherwise meritorious complaints.

To hold a .au domain, a registrant must meet AUDA (the .au Domain Administration) eligibility criteria: a registered Australian business name, an Australian trademark, or an entity incorporated in Australia, among other qualifying categories. This matters enormously in a dispute. A complainant must generally hold the name or the mark; a respondent's inability to demonstrate eligibility can itself be a factor in the dispute record. In our practice, we have seen complaints weakened from the outset because the complainant had not confirmed its own eligibility posture before filing.

The bad-faith element under the auDRP warrants particular attention. The UDRP requires that the domain was registered and used in bad faith – a cumulative test. The auDRP, like several ccTLD procedures, reads the bad-faith limb in some respects as registration or use, which means a domain that was registered in good faith but is currently being used abusively may still be captured. Treat this as a qualitative advantage for complainants in certain fact patterns, and confirm the current text of the auDRP rules with counsel before filing, as registry policy can be updated.

Finally, the zone: the auDRP applies to the .au namespace. It does not apply to a co-registered .com or a separately held .au direct registration (the newer single-label .au space introduced by auDA). Each zone requires its own analysis.

To assess whether your mark and your target domain qualify under the auDRP, email info@cognomenlaw.com. We will check the eligibility criteria, the three elements, and the realistic mediation prospects before any filing fee is committed.

Step 1 – Build Your Evidentiary Record Before Filing Anything

The single most consequential step in the entire process happens before you file. Evidence assembled after a complaint is lodged is difficult to supplement and can arrive too late for the mediation window. The trap at this stage is treating the complaint as a document to draft rather than a case to build.

Start with your trademark position. The auDRP requires that you have rights in a name or mark. An Australian registered trademark is the strongest foundation. An unregistered mark can support a complaint, but you will need to document the reputation, the volume of Australian consumer exposure, and the trading history – all qualitatively. Gather registration certificates, WIPO trademark records where they cover Australian classes, and evidence of use in Australian commerce.

Next, document the domain's registration history. A WHOIS or RDDS lookup (noting that privacy masking is common) captures the current registrant details. Screenshot the domain's live use: what does it resolve to? Is it parking with pay-per-click links that reference your industry? Is it redirecting to a competitor? Is it sitting inactive? Each pattern has a different weight under the bad-faith analysis. A domain pointing at parked pages with links to competing goods is a different argument from a domain sitting passively without any content.

Document the timeline carefully. When did you first use your mark in Australia? When was the .au domain registered relative to that date? If the domain was registered after your trademark became publicly known or registered, that temporal sequence supports the inference of targeting. If the domain predates your mark, the complaint becomes substantially harder – and mediation may produce a better result than a formal decision.

Collect any correspondence with the registrant. A demand for payment – particularly a five-figure amount – is strong evidence of bad-faith intent under Paragraph 4(b) equivalents of the auDRP. So is a refusal to negotiate, particularly if the registrant has no apparent connection to the name or to Australia.

In a recent matter (a .com.au pharmaceutical brand dispute, autumn 2025), we assembled a trademark record going back several years, combined with RDDS captures showing the domain resolving to a competing online pharmacy. That record gave us a strong mediation position: the respondent settled during the mediation window rather than risk a panel finding, and the domain transferred without a formal decision.

Step 2 – Understand the Mediation Stage and How to Trigger It

Mediation under the auDRP is not an afterthought. It is a structured stage in the process, and the way a party enters it – and conducts itself during it – can determine whether the dispute resolves on acceptable terms or proceeds to an adversarial panel decision.

After a complaint is filed and formally accepted by the dispute resolution provider, the respondent receives notice and has a defined period to respond. The auDRP procedure provides for a mediation opportunity at this juncture. Both parties are notified of the process, and a mediator (or the provider's case manager) facilitates communication. This window is time-limited – confirm the current period with the administering provider, as auDA's approved providers publish their schedules and these can be updated.

The trap at this step is underestimating what mediation can accomplish. A panel can only transfer or cancel the domain. A mediator can broker an outcome that includes a phased transfer with no payment, a licence arrangement, a consent agreement with ongoing terms, or even a buy-out at a price both sides find acceptable. If your brand needs the domain immediately but you are open to paying a fair market value rather than the speculative amount the registrant demanded, mediation is often the faster route to that result.

To use the mediation stage effectively, arrive prepared. Know your walk-away position. Know the registrant's likely interest: are they monetizing the domain commercially, or are they simply unaware of your trademark? A registrant who registered the name in connection with a defunct business may be receptive to a simple transfer in exchange for a modest contribution to transfer costs. A professional cybersquatter with a portfolio of parked domains will negotiate differently – and a formal panel decision may ultimately produce a better outcome than an inflated mediation settlement.

We regularly advise clients entering mediation to maintain a written record of all proposals exchanged. Mediation communications are typically confidential, but if mediation fails and the matter proceeds to a panel, the fact that the respondent demanded an amount wholly disproportionate to registration costs can sometimes be evidenced through the pre-mediation correspondence rather than the mediation itself.

If you have already filed a complaint and the mediation window is open, email info@cognomenlaw.com. A focused read of the respondent's position and your evidence can identify whether settlement or a panel decision is the better path from here.

What Evidence Decides the Outcome If Mediation Fails?

When mediation fails – or when the respondent simply defaults and does not participate – the dispute proceeds to a formal panel decision under the auDRP's three-element test. The evidence you assembled in Step 1 now does the work.

Element one – confusing similarity – is usually the simplest. If your Australian trademark is registered and the domain incorporates it entirely, similarity is near-certain. The analysis becomes more nuanced where the domain adds generic terms ("buy-[your-brand].com.au", "cheap-[your-brand].com.au"), but panels applying the auDRP and the UDRP consensus view have consistently held that generic additions do not dispel confusion where the dominant element is the complainant's mark. The zone suffix (.com.au) is ignored for comparison purposes.

Element two – absence of rights or legitimate interests – is where many complaints stall. The auDRP, like the UDRP, places a practical burden on the complainant to make a prima facie case, after which the burden shifts to the respondent to demonstrate a legitimate interest. Panels have consistently held that a respondent who uses a domain to host pay-per-click links in the complainant's industry, who has no business history under the name, and who made no use of the domain before receiving the complaint, has no colorable legitimate interest. Conversely, a registrant who can show they have traded under a corresponding business name in Australia for years, or who held the name for a recognized personal or organizational reason unrelated to the complainant, can defeat this element.

Element three – bad faith – is where the auDRP's "or" reading matters. A domain that was registered to a local business for a legitimate purpose but has since been redirected to a competitor's site, or has been listed for sale at a speculative price after the business ceased trading, may satisfy the "used in bad faith" limb even if the original registration was innocent. Document the current use carefully. Screenshots dated and archived are more persuasive than a description; panels reviewing evidence need to see what the domain actually resolved to, not just what counsel says it resolved to.

In a second recent matter (a .net.au trade name dispute, winter 2025), mediation failed when the respondent did not engage. We proceeded to a formal panel decision on a record that included dated RDDS captures, three years of archived screenshots showing the domain redirecting to a competing wholesaler, and the complainant's long-standing Australian trademark. The panel transferred the domain. No extensions were sought.

How Does the auDRP Differ from the UDRP – and Why Does It Matter for Mediation?

Practitioners who treat the auDRP as a UDRP clone make a predictable set of errors. The differences are real and affect mediation strategy as much as the formal complaint.

The most significant substantive difference is the bad-faith reading described above. Under the UDRP, a complainant who cannot show that the domain was registered in bad faith – regardless of how abusively it is currently used – will lose on element three. Under the auDRP, the "or" reading in some configurations means a panel may find bad faith in use alone. This matters in mediation because a respondent who knows the auDRP gives the complainant a colorable argument on bad-faith use may be more willing to settle than one who correctly identifies that the original registration was innocent and the UDRP's strict "and" reading would defeat the claim.

Eligibility is the second key difference. The UDRP does not restrict who can hold a gTLD domain. The auDRP (and the underlying auDA eligibility rules) means that if the respondent cannot demonstrate current Australian eligibility for the domain, the complainant's case is strengthened beyond the three-element analysis. In a formal hearing, a respondent who has lost their Australian business registration or who registered the domain without ever having eligibility is in a weak position.

The choice of provider is another practical difference. auDA accredits specific dispute resolution providers for the .au space – verify the current approved list with counsel, as this can change. Each provider publishes its own schedule of fees and its own procedural rules (within the auDRP framework), so the exact mediation process and fee structure depend on which provider administers the case.

Finally, remedies. Like the UDRP, the auDRP's formal remedies are transfer or cancellation only. No monetary damages. No cost award. No injunction. If you need damages or interim relief to stop the domain being used to divert customers while the dispute runs, a court action in the relevant Australian jurisdiction is the only path – and that means engaging local litigation counsel in the relevant jurisdiction.

Step 3 – Decide: Mediation, Formal Panel, or Court?

The right route for a .au domain dispute depends on what the registrant wants, what you can prove, and how quickly you need the domain. Here is the decision logic in plain terms.

If the registrant is reachable and has any rational economic interest – a holding fee, an agreed exit, a licence – attempt mediation. Mediation costs less than a panel decision, produces faster closure, and can deliver terms a panel cannot. The risk is that a bad-faith registrant uses the mediation window to delay and to run out the clock on any approaching brand event or product launch. If the respondent's past conduct shows they negotiate only to extract payment, go directly to the formal panel track and use the evidence record you built.

If the domain is causing active harm right now – diverting customers, hosting phishing content, or being used to impersonate your business – a court action for interim relief may be necessary alongside the auDRP filing. Court action reaches a broader set of remedies but requires local litigation counsel in the relevant Australian jurisdiction and carries substantially higher cost and timeline. The auDRP and a court action can, in some circumstances, run in parallel; coordinate with counsel carefully to avoid jurisdictional complications.

If the domain is in the new .au direct registration space (single-label .au, introduced separately from .com.au), confirm that the auDRP applies and that the registrant holds a corresponding .com.au or other second-level .au. The priority period and the rules for the direct .au space have specific nuances that differ from the .com.au procedure; verify the current applicable rules before filing.

For a pure .com domain disputed by an Australian brand owner, neither the auDRP nor the Australian courts are the only option. A UDRP complaint at WIPO, where the filing fee starts at USD 1,500 for a single-member panel on one to five domains, may proceed faster or more economically depending on the facts. We assess the zone, the registrant's location, and the evidence before recommending a forum – and that assessment sometimes points to WIPO even when the client's primary concern is the .com.au name.

Related at COGNOMEN

• ccTLD dispute services: .au, .uk, .eu, .de, and national procedures worldwide
• FAQ: how to check ccTLD eligibility for US-based brand owners
• URS and TMCH Claims Notice for new gTLD domains: suspension and monitoring