.au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424

.au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424

The July and September notices were misleading because, assessed by reference to ordinary or reasonable recipients including those with little knowledge of domain name registration, their form, reference numbers, closing dates and similarity between listed and existing domain names conveyed that the notices related to renewal of recipients' existing registered domain names, that those names were due for renewal or would expire, and that recipients risked losing them or had to pay to maintain them. The ACCC's pleaded case on the June notice failed because that notice made clear it concerned the unregistered .com version of each recipient's .com.au domain name. The s 64(2A) claims failed...

Jurisdiction
Australia
Judgment Date
08 April 2004
Procedural Posture
Representative Proceeding and ACCC Proceeding Alleging Misleading or Deceptive Conduct and Assertion of a Right to Payment for Unsolicited Services Under the Trade Practices Act 1974 (cth) / Reasons for Judgment After Trial of Two Actions Heard Together
Outcome
The applicants succeeded in part on the s 52 misleading or deceptive conduct claims in relation to the July and September notices, but failed on the pleaded s 52 claim in relation to the June notice and on the s 64(2A) unsolicited services claims.
Legal Topics
['notices Regarding Registration of Domain Names' 'representations to a Section of the Public' 'hypothetical Representative Member of Class' 'unsolicited Services' 'assertion of Right to Payment']
['trade Practices' 'consumer Protection' 'misleading or Deceptive Conduct' 'internet Domain Names'] ['notices Regarding Registration of Domain Names' 'representations to a Section of the Public' 'hypothetical Representative Member of Class' 'unsolicited Services' 'assertion of Right to Payment']

Case Brief

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Procedural Posture

Representative Proceeding and ACCC Proceeding Alleging Misleading or Deceptive Conduct and Assertion of a Right to Payment for Unsolicited Services Under the Trade Practices Act 1974 (cth) / Reasons for Judgment After Trial of Two Actions Heard Together

Legal Issues

  1. 1 ["Whether DNA's June, July and September 2003 domain name notices conveyed false or misleading representations contrary to s 52 of the Trade Practices Act 1974 (Cth)." 'Whether the Court should assess the notices by reference to a hypothetical ordinary or reasonable member of the class of recipients.' 'Whether proof that significant numbers of recipients were likely to be misled was required for a contravention of s 52.' 'Whether the notices asserted a right to payment for unsolicited services contrary to s 64(2A) of the Trade Practices Act 1974 (Cth).' 'Whether s 64(2A) applies to services not yet provided.']

Ratio Decidendi

The July and September notices were misleading because, assessed by reference to ordinary or reasonable recipients including those with little knowledge of domain name registration, their form, reference numbers, closing dates and similarity between listed and existing domain names conveyed that the notices related to renewal of recipients' existing registered domain names, that those names were due for renewal or would expire, and that recipients risked losing them or had to pay to maintain them. The ACCC's pleaded case on the June notice failed because that notice made clear it concerned the unregistered .com version of each recipient's .com.au domain name. The s 64(2A) claims failed...

Court Disposition

The applicants succeeded in part on the s 52 misleading or deceptive conduct claims in relation to the July and September notices, but failed on the pleaded s 52 claim in relation to the June notice and on the s 64(2A) unsolicited services claims.

Orders

  • ['Declarations to be made in each action to give effect to the reasons.' "Declarations to include that Mr Rafferty was involved in DNA's contraventions of s 52 of the Trade Practices Act 1974 (Cth)." 'Injunctions to restrain DNA and Mr Rafferty from further breaching the legislation for three years.' '.au Domain and...