Bacon Farmer
Top Contributor
I know there is confusion here regarding a domain dispute path via AUDA and a civil law case but a remedy from the courts may not have any involvement from AUDA at all.
Opinions Please
- Thread starter Data Glasses
- Start date
Data Glasses
Top Contributor
To me it is still plain and simple that my site currently runs as a forum and blog as well as an articles front page, by their own admission thay have been complacent by not even bothering to register a business name.
Going by some of the suggestions the owner of cars.com.au has right to all the other cars/domains which we all know is not true
Also as stated they are using a .org.au and promoting themselves as an organization i assume, at not stage of the game am i doing that
Also in the first post of the front page it is stated i have no affiliation with *****forum/org/au or Mca
What is the point of having other extensions if one domain name can claim all ??
Going by some of the suggestions the owner of cars.com.au has right to all the other cars/domains which we all know is not true
Also as stated they are using a .org.au and promoting themselves as an organization i assume, at not stage of the game am i doing that
Also in the first post of the front page it is stated i have no affiliation with *****forum/org/au or Mca
What is the point of having other extensions if one domain name can claim all ??
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DomainNames
Top Contributor
Most courts now take a dim view of lodged proceedings for domain name disputes. They are fully aware of the audrp and path available. Its very rare any cases proceed to courts outside of the audrp etc and those that do normally end badly for the complainant with massive costs, bad publicity and in the end a loss! The only people who would advise a client to lodge via the court system and not the AUDRP would be an inexperienced lawyer or law firm who wanted to make some good money in fees from a less than knowleagable client.
As you can see from world domain name dispute case history some huge companies lodge claims using huge law firms and they still lose.. sometimes to respondants who represent themselves without any lawyer .... sometimes the respondant does not even lodge defence and they still win
!
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Bacon Farmer
Top Contributor
DM, passing off is a civil law issue for which the remedy imposed by the court may not get them the domain but could certainly stop our man, Spacey, from publishing his website on the domain of his choice which is what their goal appears to be.
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Bacon Farmer
Top Contributor
Who said that?
Sometimes disclaimers are not enough. True story.
Spacey, please seek a professional's advice and get all references to you domain removed from this thread (if possible).
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Data Glasses
Top Contributor
well at the worst it has opened up debate, if it came down to defense it would have to be myself, so i guess i will keep you posted.
I guess it takes a few days for a 'letter to arrive'
I guess it takes a few days for a 'letter to arrive'
snoopy
Top Contributor
It is a bit like an art gallery calling themselves "paint brush" then trying to go after paint brush manufacturers. A court is not going to say "well this person has been using the term to run an art gallery, that is about painting therefore nobody can use the term for anything to do with painting".
I think what they would say here is, there is no registered mark, if they really have common law rights they are probably extremely narrow, ie preventing an music magazine using the term, not preventing someone running a music forum with this domain.
Not where the ordinary meaning of the word relates to that industry.
Bacon Farmer
Top Contributor
Not really a good analogy is it. Music F is not really like say Guitar. More like a publisher with an established name and reputation in a particular industry going after another publisher who is using their masthead name. With respect to print magazine v website, it's actually quite common for magazines to have websites as well so in the area of contention (websites) I think it is reasonable for them to object.
If they can prove their common law trademark then yes that's exactly what could happen especially where painting is actually publishing in the music industry.
The issue is about the combination of the two words. Same words, same industry, where both parties are publishers - there's enough meat on that bone.
Data Glasses
Top Contributor
The publishing format is completely different, one is online discussion and one is based on sending out content.
One promotes its self as an organization via it's extension
The other does not and is a static discussion point
There is also the fact that if you go via google one will say it is a magazine, while the other will say australian music
how anyone who has gone to a site over a number of years can somehow be confused is slightly beyond me.
The latter only offers the opportunity to 'blog online' where as the other seeks writers for a publication sent out to members
I think if the term can be classified as generic then there is only fair competition via different websites
I think another difference is that mine does not offer paid advertising ? It is not as if i am taking thier revenue stream
One promotes its self as an organization via it's extension
The other does not and is a static discussion point
There is also the fact that if you go via google one will say it is a magazine, while the other will say australian music
how anyone who has gone to a site over a number of years can somehow be confused is slightly beyond me.
The latter only offers the opportunity to 'blog online' where as the other seeks writers for a publication sent out to members
I think if the term can be classified as generic then there is only fair competition via different websites
I think another difference is that mine does not offer paid advertising ? It is not as if i am taking thier revenue stream
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Bacon Farmer
Top Contributor
Data Glasses
Top Contributor
it seems they have blocked me but i would love to know if it is a paid membership ??
i feel the difference between extensions is a major part of determining who you are going to,
example is carsalewa and carsaleqld, you know both are carsales but the states are different
same could be said of the extensions, at this point they have not even done the facebook thing
....i have
i feel the difference between extensions is a major part of determining who you are going to,
example is carsalewa and carsaleqld, you know both are carsales but the states are different
same could be said of the extensions, at this point they have not even done the facebook thing
....i have
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DomainNames
Top Contributor
Spacey let them waste their money. You dont need to respond to anything at all. Let them spend money on legals if they wish etc etc. Wait till their lawyers contact you then flood them with paperwork ( their lawyers will charge them maybe $50 - $100 a page to read for example, printing, emails, phone calls etc etc ) so send them 50 files of 100 pages etc all about domain names , google searches for " music forum" etc etc.
In the end they will lose the case and lose heaps of money for wasting your time. Auda and the audrp and courts also dont like false claims with little chance of success from being lodged etc
Dont put any more thought into it. Its a bit like using a fire extinguisher when there is no fire... Have a plan ready in case of a fire but use it only when you have to!... no use worrying about fires that most probably wont happen.
Dont try and join their forum etc. Best now to not have contact with them. Dont give them any reasons to proceed!
In the end they will lose the case and lose heaps of money for wasting your time. Auda and the audrp and courts also dont like false claims with little chance of success from being lodged etc
Dont put any more thought into it. Its a bit like using a fire extinguisher when there is no fire... Have a plan ready in case of a fire but use it only when you have to!... no use worrying about fires that most probably wont happen.
Dont try and join their forum etc. Best now to not have contact with them. Dont give them any reasons to proceed!
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johno69
Top Contributor
So you are letting Google run those ads absolutely free?
That Sir, is paid advertising.
Data Glasses
Top Contributor
they are offering 'paid advertising' under direct contract with their site, i am not promoting myself that way was the point
thanks all positive and informative views along the way
thanks all positive and informative views along the way
snoopy
Top Contributor
Most medium-large businesses have a website. The bow just seems to be getting drawn back further and further here. First it is "music" now it is "websites".
Since when has someone successfully claimed it a trademark lawsuit that their unregistered mark covers something as broad as "having a website"?
The term is descriptive of what spacey is offering, it isn't something made up/fanciful.
FirstPageResults
Top Contributor
Just a friendly warning to everyone that threads on DNT have in the past been used by Complainants to support their claims against Respondents in auDRP Proceedings.
If you are seeking comments/advice on anything that may have possible auDRP consequences, you are best advised to give hypothetical examples only instead of real names and refrain from posting private emails verbatim.
So having said this, please do not ask or expect us to go back and edit threads in the future - we do not want to offend by having to refuse. We are an open forum and we like to keep censorship to a absolute minimum.
If you are seeking comments/advice on anything that may have possible auDRP consequences, you are best advised to give hypothetical examples only instead of real names and refrain from posting private emails verbatim.
So having said this, please do not ask or expect us to go back and edit threads in the future - we do not want to offend by having to refuse. We are an open forum and we like to keep censorship to a absolute minimum.
Bacon Farmer
Top Contributor
The industry is music, the business is publishing, the possible common law trademark is "m***c f***m" and the area of contention where Spacey's business and theirs overlaps is on the website m***cf***m.com.au. Where's the long bow?
Correct, it isn't something made up, it's something that has been used for 18 years as part of a business hence the possible common law trademark issue.
I think this has progressed from helping the OP to degenerating into a point making pissing competition and as such have nothing further to add.
Have a nice day
snoopy
Top Contributor
(note previously argument below)
The long bow is going from the supposed area of contention being "music" to "websites". I don't think there is any class of trademark that would apply generally to websites unless it was some kind of webhosting business. Most medium/large companies and many small companies operate websites so two companies using the same term in different classes are highly likely to both be operating websites.
ie a cafe called "olive grove"
a clothing company called "olive grove"
One company can hardly argue nobody can use the term in relation to "a website" simply because they operate a site using the term.
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Bacon Farmer
Top Contributor
Got a letter a while back from a lawyer representing the owner of a trademark relating to a phrase which included the word loans.
They insisted we remove the words "genericword1 genericword2 Loans" from our loan comparison table.
They didn't care that their TM was on a website or I suspect in a magazine, just that it was accessible by the public.
The relevant issue was; same industry and same phrase, irrespective of it being in a magazine or on a website. If it's viewable by the public it's open season.
They insisted we remove the words "genericword1 genericword2 Loans" from our loan comparison table.
They didn't care that their TM was on a website or I suspect in a magazine, just that it was accessible by the public.
The relevant issue was; same industry and same phrase, irrespective of it being in a magazine or on a website. If it's viewable by the public it's open season.
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DomainNames
Top Contributor
Let them take it to court. They will lose and spend a fortune. Dont bother replying... let them keep spending for their ignorance and bullying
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