17 Sep
2006
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Domain
Name Disputes
The Federal Court's judgement
in Hoath & 1 Or v Connect Internet Services & 5 Ors
[2006] NSWSC 158 is a reminder that remedies for disputes
about domain names are not restricted to the auDRP,
UDRP and ACPA.
In the Hoath case plaintiff Mark Hoath had registered the
Dragon Net business name and dragon.net.au domain name in
1995. In 2000 he allowed associates to use that domain as
part of a new venture in the finance sector.
The expectation was that he would be rewarded with a share
in that business. Unfortunately, disagreements arose - resulting
in action
in the NSW Supreme Court - as the business went bad and Hoath
sought to retrieve the names.
The judgement notes that
From the beginning of June 2001, there was a tussle
between Mr Hoath on the one hand, and Com-Cen, Mr Bal and
Mr Stevens on the other, about control of the domain name
dragon.net.au. Mr Hoath had the name re-delegated to him by
the responsible internet registrar, Connect Pty Ltd. Com-Cen
had it registered back. Com-Cen asserted to Connect that Spin
had purchased the right to use the domain name when it bought
ITFirst's customer base. ... Hoath obtained the "registry
key" to have the IP range and AS number transferred back to
himself. However, on 21 August 2001, Mr Stevens sent a facsimile
to APNIC, which, as successor to AUNIC, controlled the registration
of IP addresses and AS numbers. Mr Stevens said that Spin
had purchased the IP range and AS number from ITFirst. At
Spin's request, APNIC re-delegated the IP range and AS number
to Com-Cen.
Hoath sought relief from the Supreme Court. He claimed damages
for the defendants' use of the names in conversion and passing
off, damages for breach of s 52 of the Trade Practices Act
1974 (Cth) for for the defendants' allegedly misleading
Connect and APNIC about their right to use the domain name,
damages for non-return of computer equipment provided by Hoath,
and unpaid salary, payment of phone bills and vehicle finance
costs.
Justice White found that by using the dragon.net.au domain the
defendants had committed the tort of passing off. The defendants
were found to have breached sections 52
and 75B of the Trade Practices Act 1974.
The Court restrained the defendants from using the 'Dragon Net'
business name and domain name. They were ordered to re-delegate
the domain name to Hoath. Justice White held that they were
entitled to a reasonable period in which to notify users of
the dragon.net.au domain (customers using a username@dragon.net.au
email address) that it would no longer be used as part of their
activities. Return was thus not immediate.
The Court indicated that Hoath was entitled to damages under
the Trade Practices Act 1974. It granted a choice of
compensation, based on profits made by the defendants in using
his business and domain names or by the losses he had suffered..
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