Kiwi's banned from international ecommerce?

Discussion in 'NZ Computing' started by Domain Names, Oct 7, 2003.

  1. Domain Names

    Domain Names Guest

    I have been closely watching a court case in which an NZ exporter who has a
    ..com domain (using the example from earlier posts, I'll use beds.com) is in
    dispute with a UK company who uses beds.co.uk.

    One of the causes of action is under the S9 "Misleading Behaviour" of the
    NZ Fair Trading Act, in which beds.co.uk says that internet users in the UK
    could be misled and/or confused by the similarity of domain names. Note
    that apart from selling similar items, there is no similarity in the site
    content - only in the url.

    Incredibly, the NZ high court judge agreed! Out lawyer says it's 'a
    chilling precedent'.

    Quoting our lawyer again 'It means someone in NZ can breach the FTA
    complete unwittingly, [by] using a domain name [of] a shop in any other
    county. As long as the shop can prove a reputation in their country, they
    can mount an action against someone in NZ under the FTA. Broadcasting on
    the net makes you liable, as someone in that country can receive that
    information.'

    While this decision came about during the injunction hearing which only
    _prevents_ beds.com from using that domain for webserving to customers in
    the UK, beds.co.uk are seeking the _transfer_ of beds.com to the owners of
    beds.co.uk as a remedy for the FTA "breach".

    At least until the full trial, one option that we do have is to use GeoIP
    http://www.maxmind.com/app/country to prevent access from the UK and
    Europe. Can anyone recommend a web hoster/developer who has had experience
    using GeoIP?
    Domain Names, Oct 7, 2003
    #1
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  2. Domain Names

    madknoxie Guest

    In article <>,
    Domain Names <> wrote:

    > At least until the full trial, one option that we do have is to use GeoIP
    > http://www.maxmind.com/app/country to prevent access from the UK and
    > Europe. Can anyone recommend a web hoster/developer who has had experience
    > using GeoIP?


    There are free/open source ones available, here's one I came across
    yesterday: http://www.hotscripts.com/Detailed/26798.html

    I'm not sure how reliable these types of scripts are in actually
    determining where an IP comes from, but it shouldn't stop you
    using/testing one. Have a search of the site/URL I gave you above,
    theres bound to be more there.

    That is a chilling precendent! Has the judge ever used a computer before?

    --
    madknoxie
    $35 .nz domain names: http://www.ivision.co.nz/
    madknoxie, Oct 8, 2003
    #2
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  3. Domain Names

    will Guest

    > One of the causes of action is under the S9 "Misleading Behaviour" of the
    > NZ Fair Trading Act, in which beds.co.uk says that internet users in the UK
    > could be misled and/or confused by the similarity of domain names. Note
    > that apart from selling similar items, there is no similarity in the site
    > content - only in the url.


    #### can beds.com conuter-sue beds.co.uk for misleading UK/European
    customers wanting to buy the world-famous NZ-made beds, but mistakenly
    visited beds.co.uk thinking that it represents beds.com? for example,
    i'm in NZ, so naturally i'll visit sony.co.nz before trying sony.com.
    just a crazy thought :)

    but seriously, i think this kind of (common sense) cases should be made
    public. not all judges are internet geeks, and any domain-name-related
    cases that made the news (qantas, oggi etc) are all about
    cyber-squatting. so it's easy to mistake all defendants as
    cybersquatters, otherwise why would the plantiff bother to come to the
    court?

    so hopefully thru TV/newspaper, more people will come to their senses
    and understand the differences.

    it's a .com, but it's not surprising that they didn't go thru WIPO
    first, which is cheaper and quicker.

    will.
    will, Oct 8, 2003
    #3
  4. Domain Names

    Jason M Guest

    On Wed, 08 Oct 2003 10:46:01 +1300, Domain Names
    <> wrote:

    >Incredibly, the NZ high court judge agreed!


    Who is the judge? Or do you have a URL about the case?
    Jason M, Oct 8, 2003
    #4
  5. Domain Names

    pete Guest

    "madknoxie" <> wrote in message
    news:...
    > In article <>,
    > Domain Names <> wrote:
    >
    > > At least until the full trial, one option that we do have is to use

    GeoIP
    > > http://www.maxmind.com/app/country to prevent access from the UK and
    > > Europe. Can anyone recommend a web hoster/developer who has had

    experience
    > > using GeoIP?

    >
    > There are free/open source ones available, here's one I came across
    > yesterday: http://www.hotscripts.com/Detailed/26798.html
    >
    > I'm not sure how reliable these types of scripts are in actually
    > determining where an IP comes from, but it shouldn't stop you
    > using/testing one. Have a search of the site/URL I gave you above,
    > theres bound to be more there.
    >
    > That is a chilling precendent! Has the judge ever used a computer before?


    probably only to "research" porn sites
    >
    > --
    > madknoxie
    > $35 .nz domain names: http://www.ivision.co.nz/
    pete, Oct 8, 2003
    #5
  6. On Wed, 08 Oct 2003 14:17:45 +1300, will wrote:

    > it's a .com, but it's not surprising that they didn't go thru WIPO
    > first, which is cheaper and quicker.


    I thought they'd tried and been told where to get off.
    Uncle StoatWarbler, Oct 8, 2003
    #6
  7. In article <>, "Uncle StoatWarbler" <> wrote:
    >On Wed, 08 Oct 2003 14:17:45 +1300, will wrote:
    >
    >> it's a .com, but it's not surprising that they didn't go thru WIPO
    >> first, which is cheaper and quicker.

    >
    >I thought they'd tried and been told where to get off.
    >

    eh? You saying that WIPO found for the defendant? Damn, that's one
    hell of a precedent, since as far as I know they always find for the
    plaintiff in domain name cases.
    Or is that just my extremely cynical view of any IP rules into which the
    Yanks have input?

    --
    Matthew Poole Auckland, New Zealand
    "Veni, vidi, velcro...
    I came, I saw, I stuck around"

    My real e-mail is mattATp00leDOTnet
    Matthew Poole, Oct 8, 2003
    #7
  8. Domain Names

    Domain Names Guest

    Matthew Poole wrote:

    >>>it's a .com, but it's not surprising that they didn't go thru WIPO
    >>>first, which is cheaper and quicker.

    >>
    >>I thought they'd tried and been told where to get off.
    >>

    >
    > eh? You saying that WIPO found for the defendant? Damn, that's one
    > hell of a precedent, since as far as I know they always find for the
    > plaintiff in domain name cases.
    > Or is that just my extremely cynical view of any IP rules into which the
    > Yanks have input?


    Well, we tried to get the case moved to WIPO, because this is clearly
    not a case cybersquatting (though that didn't stop them trying to argue
    that in court). But the attackers declined.

    Probably they got the advice we did - that as the principal has been
    trading in the items for 10 years or more the principal has a strong
    claim to the domain. WIPO generally only deals with clear cybersquatting
    cases.
    Domain Names, Oct 8, 2003
    #8
  9. Domain Names

    Domain Names Guest

    Jason M wrote:

    >do you have a URL about the case?


    No, I'm just reading the judgement itself, handed down Monday (but
    delayed in getting to me by Xtra's email problems until yesterday!)
    Domain Names, Oct 8, 2003
    #9
  10. Domain Names

    will Guest

    > One of the causes of action is under the S9 "Misleading Behaviour" of the
    > NZ Fair Trading Act, in which beds.co.uk says that internet users in the UK


    #### does this .co.uk have trademarks in NZ? do they have any commerical
    presence in NZ? do you know if other similar domain names (beds.co.nz,
    beds.com.au, bets.net etc) have been registered by different people?

    is it because beds.com is in NZ and now foreigners are using these NZ
    Acts to target NZ businesses? i wonder who will win if, for example,
    cars.co.nz takes on cars.com?

    are there countries which have a fairer judgements on this kind of
    issues yet?

    will.
    will, Oct 8, 2003
    #10
  11. Domain Names

    Domain Names Guest

    will wrote:

    >>One of the causes of action is under the S9 "Misleading Behaviour" of the
    >>NZ Fair Trading Act, in which beds.co.uk says that internet users in the UK

    >
    >
    > #### does this .co.uk have trademarks in NZ?


    No. They don't even had a trademark in the UK. Their original cease and
    desist letter claimed/implied they did, but they don't. They later
    claimed it's an "unregistered" trademark. The UK trademark law prevents
    them from having a trademark as it is descritive and too generic.

    >do they have any commercial presence in NZ?

    The .co.uk doesn't at all. Actually the .co.uk co doesn't sell the items
    at all. They merely provide a service which uses them. The kit they use
    to provide the service is manufactured by a kiwi company, but under a
    completely different brandname and product name. We have also sold that
    manufacturers kit, amoung other brands. We're mainly dealing in the
    items second hand.

    Under the FTA, _anyone_ can bring a claim. So both the .co.uk and NZ
    supplier are both plaintiffs under the FTA cause of action.

    >do you know if other similar domain names

    No other domains (other than .co.uk and .com) have been registered,
    although some other suppliers use the term in a url. The domain name is
    made up of two desriptive words run together. A better example would be
    forklifts.com.

    We choose the domain precisely because
    i)it was descrptive, and we had been using the description for several
    years.
    ii) no manufacturer was using the term as their brand or product name.
    iii) the classifed ads section of the relevant UK trade magazine used
    the term as the generic section heading which we were required to
    advertise our items in.

    Before we registered the domain in 1999, we checked out the .co.uk to
    ensure that they weren't in the same industry as them. We applied for
    their promotional blurb and it states plainly they are a
    Their are several other products from other manufacturers, both within
    and outside of the industry who have branded and/or described their
    products using the term.

    n.b. I'm saying "we" in the above for easiness sake. In reality I'm just
    a friendly ear / tech advisor to the principal, which is why I'm being
    circumspect about the actual domain in dispute.
    Domain Names, Oct 8, 2003
    #11
  12. Domain Names

    Domain Names Guest

    Domain Names wrote:


    > Before we registered the domain in 1999, we checked out the .co.uk to
    > ensure that they weren't in the same industry as them. We applied for
    > their promotional blurb and it states plainly they are a


    Whoops. That should be:

    .... they are a hire company only e.g. Forklift Hire Ltd
    Domain Names, Oct 8, 2003
    #12
  13. Domain Names

    Howhard Guest

    will wrote:

    > is it because beds.com is in NZ and now foreigners are using these NZ
    > Acts to target NZ businesses? i wonder who will win if, for example,
    > cars.co.nz takes on cars.com?


    The significance of this precedent is that if a kiwi exporter is using
    cars.com, then any other country cars.co.xx owner can apply under the FTA to
    prevent the .com site being served to their country.

    Plainly ridiculous, that that's what the judge has decided!
    Howhard, Oct 8, 2003
    #13
  14. Domain Names

    Paul Bealing Guest

    Domain Names wrote:
    >
    > I have been closely watching a court case in which an NZ exporter who
    > has a .com domain (using the example from earlier posts, I'll use
    > beds.com) is in dispute with a UK company who uses beds.co.uk.
    >
    > One of the causes of action is under the S9 "Misleading Behaviour" of
    > the NZ Fair Trading Act, in which beds.co.uk says that internet users in
    > the UK could be misled and/or confused by the similarity of domain
    > names. Note that apart from selling similar items, there is no
    > similarity in the site content - only in the url.
    >
    > Incredibly, the NZ high court judge agreed! Out lawyer says it's 'a
    > chilling precedent'.
    >
    > Quoting our lawyer again 'It means someone in NZ can breach the FTA
    > complete unwittingly, [by] using a domain name [of] a shop in any other
    > county. As long as the shop can prove a reputation in their country,
    > they can mount an action against someone in NZ under the FTA.
    > Broadcasting on the net makes you liable, as someone in that country can
    > receive that information.'
    >
    > While this decision came about during the injunction hearing which only
    > _prevents_ beds.com from using that domain for webserving to customers
    > in the UK, beds.co.uk are seeking the _transfer_ of beds.com to the
    > owners of beds.co.uk as a remedy for the FTA "breach".
    >
    > At least until the full trial, one option that we do have is to use
    > GeoIP http://www.maxmind.com/app/country to prevent access from the UK
    > and Europe. Can anyone recommend a web hoster/developer who has had
    > experience using GeoIP?


    Who is the Judge and what is the case.

    Another good reason not to run a business from New Zealand.
    Maybe the internet presence could be run from another country and the
    domain name transfered to someone not in NZ so that it can't be given
    away by some inept judge.

    It seems that the NZ legal system is there to protect the rest of the
    world from New Zealand. Combined with idiot patents and trade marks,
    it's a wonder anyone bothers.

    Paul Bealing
    Paul Bealing, Oct 9, 2003
    #14
  15. On Wed, 08 Oct 2003 18:57:14 +0000, Matthew Poole wrote:

    > eh? You saying that WIPO found for the defendant?


    Several times, as it happens.
    Uncle StoatWarbler, Oct 9, 2003
    #15
  16. On Thu, 09 Oct 2003 10:35:27 +1300, Domain Names wrote:

    > No. They don't even had a trademark in the UK. Their original cease and
    > desist letter claimed/implied they did, but they don't. They later
    > claimed it's an "unregistered" trademark. The UK trademark law prevents
    > them from having a trademark as it is descritive and too generic.


    They'd face the same issue if they tried to register it in NZ or in the
    USA for that matter. ("Windows" only got trademarked via LOTS of paoyla and
    it looks like a side effect of the Lindows case is that the Windows
    trademark will be thrown out.)
    Uncle StoatWarbler, Oct 9, 2003
    #16
  17. On Thu, 09 Oct 2003 12:16:37 +1300, Paul Bealing wrote:

    > Who is the Judge and what is the case.


    Probably the same idiot who believes that blacklist admins somehow manage
    to intercept and read 3rd party mail on its way to the destination ISP.
    Uncle StoatWarbler, Oct 9, 2003
    #17
  18. Domain Names

    Jason M Guest

    On Thu, 09 Oct 2003 20:09:35 +0200, "Uncle StoatWarbler"
    <> wrote:

    >On Thu, 09 Oct 2003 12:16:37 +1300, Paul Bealing wrote:
    >
    >> Who is the Judge and what is the case.

    >
    >Probably the same idiot who believes that blacklist admins somehow manage
    >to intercept and read 3rd party mail on its way to the destination ISP.


    I'd just like to know if it's the same judge who is regarded to be an
    expert on the Internet, and thinks that no-one knows who he is when
    he's trying to post anonymously.
    Jason M, Oct 9, 2003
    #18
  19. On Thu, 09 Oct 2003 20:27:20 +0000, Jason M wrote:

    > On Thu, 09 Oct 2003 20:09:35 +0200, "Uncle StoatWarbler"
    > <> wrote:
    >
    >>On Thu, 09 Oct 2003 12:16:37 +1300, Paul Bealing wrote:
    >>
    >>> Who is the Judge and what is the case.

    >>
    >>Probably the same idiot who believes that blacklist admins somehow manage
    >>to intercept and read 3rd party mail on its way to the destination ISP.

    >
    > I'd just like to know if it's the same judge who is regarded to be an
    > expert on the Internet, and thinks that no-one knows who he is when
    > he's trying to post anonymously.


    The one who wrote a book so full of holes it's made him a laughingstock
    among admins who've read it?

    Could well be....
    Uncle StoatWarbler, Oct 10, 2003
    #19
  20. On Thu, 09 Oct 2003 20:27:20 GMT, (Jason M)
    wrote

    >On Thu, 09 Oct 2003 20:09:35 +0200, "Uncle StoatWarbler"
    ><> wrote:
    >
    >>On Thu, 09 Oct 2003 12:16:37 +1300, Paul Bealing wrote:
    >>
    >>> Who is the Judge and what is the case.

    >>
    >>Probably the same idiot who believes that blacklist admins somehow manage
    >>to intercept and read 3rd party mail on its way to the destination ISP.

    >
    >I'd just like to know if it's the same judge who is regarded to be an
    >expert on the Internet, and thinks that no-one knows who he is when
    >he's trying to post anonymously.


    David Harvey?
    Jacques de Basnage, Oct 11, 2003
    #20
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