Trademarks exist in Australia subject to the Trade Marks Act[53] or the common law, subject to the "passing off" right of action[54] A trademark is typically infringed when a person 'uses as a trademark' a sign that is substantially identical or deceptively similar to the trademark.[55] It is the concept of 'uses as a trademark' that is most important regarding domain names. Passing off actions though are usually made in addition with s52 of the TPA[56] which has numerous advantages, such as eliminating the necessity to prove that customers have been misled. However, the conduct must take place in 'trade or commerce'. Fair trading legislation extends the remedies available through litigation further, because it avoids the difficulty of registering a generic name under trademark law.[57]

Infringement of a trademark will occur if the goods or services displayed on the alleged domain name address are of the same description.[59] Infringement is also possible if the domain name holder displayed "closely-related" goods or services, though a defence exists if it can be proven that the sign would not likely deceive or cause confusion.[60]

To date, Australia has had no case law that considers whether registration or use of a domain name constitutes trademark infringement or passing off.

&

Whilst the cases of other jurisdictions provide useful guidance to Australian courts, the lack of case law in Australia makes the litigious path a precarious one. The UDRP on the other hand, having resolved many disputes in this area, is definitely a useful method of settling such disagreements.

Searcher twists name rules
Simon Hayes
MARCH 22, 2005
WOULD-BE search king Ansearch has ruffled a few feathers among Australia's top corporate brands by registering misspellings of well-known internet domain names in an attempt to drive traffic to the search engine.
....
Picking up foxsport.com.au has put Ansearch offside with News Limited, publisher of The Australian.

"This is a blatant attempt to exploit our brands and to siphon traffic that is clearly intended for our sites, and as such we take this very seriously," said Nic Jones, managing director of News Interactive.

"We have invested a great deal in these brands, and we will protect that investment.

"Ansearch can rest assured that we will be exploring all avenues open to us to resolve this issue."

News Interactive is the digital division of News Limited.

A spokesman for Motorola said Ansearch's registration of motorolla.com. au would be examined by the company's regional legal team.

"This has happened a number of times, and it's of deep concern to us," he said.

"It is misleading. We send these cases to our legal people, and they act."

The ABC said it had not received any complaints about Ansearch's registration of abcnews.com.au, abcradio .com.au and abc rural.com.au, but courts generally supported the rights of trademark owners.

"People have tried this in the past, and we have never reached the point where we had to go to court," he said.

"I'm surprised anyone is even trying this."

Microsoft said it reserved the right to protect its names.

"The registration in itself doesn't give any company or organisation any proprietary right in the trading names," said a spokeswoman.

"Like all organisations, we have rights under the law, which we can choose to exercise if there has been a breach of those rights."

Ansearch's Mr Jones said trademark holders "don't realise how much they're losing" by not registering misspellings and plurals of their brands.

The facts are really simple:

1. Many companies own domain names as a means of marketing
2. There are laws that do allow challenges to domain names if and only if there is reason
3. M*C*osoft's IE owns 95% of all web users, hence every single unregistered, misspelt and unavailable domain name.

I have examples of redirects everywhere. Maybe I should post them just like you have Excell?

Ansearch's Mr Jones said trademark holders "don't realise how much they're losing" by not registering misspellings and plurals of their brands.

Ansearch's registrations directed traffic back to the genuine site, he said.

"It has been of benefit to our users. When they go to these pages now they just click on a result that takes them to what they were looking for," he said.

On a related note, why do I keep hearing about MySearch & AnSearch at the same time? Are they related at all..?

In June 2004 Ansearch acquired MySearch.com.au to use as a test bed to trial its technologies and programmes to measure their performance....
However, Ansearch’s senior management are keen to stress that MySearch.com.au is but a small taste of what the new search engine will offer and in its current form does not appear to be much different to competing search engines.

Most of the testing to date has focused on usability and online marketing techniques, with new search technology only deployed for limited periods.
Ansearch’s new search engine will have a much different look and feel. Jones and London are confident that rolling new search and online marketing technologies into the new Ansearch search engine will enable them to attract a minimum of half a million unique visitors a month to the new site within six month of its official launch in November.

tezza - um, I find it absolutely ludicrous that you seek to imply that I have a competitive interest in this matter. Think about it - if I did, why the heck would I have promoted Ansearch here, on these forums, as an up-and-coming Australian Search Engine to watch?

Please remember - these are search engine forums where we discuss search engine matters.. Consider - if google/yahoo/overture/name of other search related company/ even fart they have to stand up to public scrutiny.

Ansearch seeks to be a david to the goliath of existing search engines - wants to stand up in the AU search engine space - next to the likes of sensis / webwombat etc.

Um, as part of the interent / webmaster community I have a responsibility & a right to speak and to question matters when I find things that could be of interest / danger / negative affect as well as positive & helpful things.