Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247

Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247

The trial judge correctly found that the notices sent by Domain Names Australia Pty Ltd were misleading or deceptive or likely to mislead or deceive, applying an objective test as to the reaction of ordinary or reasonable members of the relevant class without the need for evidence as to the characteristics of the recipients. It is not necessary that a significant number of recipients be misled, nor is market research or expert opinion required. The appeals are therefore dismissed.

Parties
First Appellant: Domain Names Australia Pty Ltd; Second Appellant: Chesley Paul Rafferty; Respondent: .au Domain Administration Limited; Respondent: Australian Competition and Consumer Commission
Jurisdiction
Australia
Judgment Date
10 September 2004
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeals dismissed
Legal Topics
Misleading and Deceptive Conduct, Domain Name Registration, Judicial Notice, Characteristics of Recipients, S 52 Trade Practices Act
Trade Practices Evidence Misleading and Deceptive Conduct Domain Name Registration Judicial Notice Characteristics of Recipients S 52 Trade Practices Act

Case Brief

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Parties

Domain Names Australia Pty Ltd

First Appellant

Chesley Paul Rafferty

Second Appellant

.au Domain Administration Limited

Respondent

Australian Competition and Consumer Commission

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether notices sent by Domain Names Australia Pty Ltd were misleading or deceptive or likely to mislead or deceive under s 52 of the Trade Practices Act
  2. 2 Whether admissible evidence as to the characteristics of recipients was required
  3. 3 Applicability of s 144 Evidence Act 1995 (Cth) regarding judicial notice

Ratio Decidendi

The trial judge correctly found that the notices sent by Domain Names Australia Pty Ltd were misleading or deceptive or likely to mislead or deceive, applying an objective test as to the reaction of ordinary or reasonable members of the relevant class without the need for evidence as to the characteristics of the recipients. It is not necessary that a significant number of recipients be misled, nor is market research or expert opinion required. The appeals are therefore dismissed.

Court Disposition

appeals dismissed

Orders

  • The appeals are dismissed.
  • The appellants pay the respondents' costs of the appeals.