Domain Names clash on court ruling

Domain Names Australia (DNA) is pressing ahead with its appeal against the Federal Court forbidding its marketing practices.

It claims other Federal Court judges have criticised the ruling.

Justice Finkelstein found that DNA's marketing breached Section 52 of the Trade Practices Act by misleading significant numbers of people into sending it money in order to keep their websites.

The case against DNA had revolved around its practise of sending out material that looked like invoices and conveyed the impression that their website registrations would be cancelled if they did not pay $237 by a certain date.

However, DNA last week released a statement saying that in another Federal Court decision on April 22, relating to a share offer by National Exchange, Justices Jacobson and Bennett indicated that they disagreed with Justice Finkelstein's view that it was not necessary to establish that many people were misled.

Last month, Justice Finkelstein dismissed several applications brought by auDA and the Australian Competition and Consumer Commission against DNA, a Perth-based domain name retailer, but upheld three relating to the wording of marketing material.

Chris Disspain, CEO of auDA, the .au domain names administrator, rejects the view that Justice Finkelstein's ruling has been criticised. Disspain said such an interpretation of the Jacobson and Bennett ruling was wrong.

Domain Names Australia director, Chesley Rafferty, said that Justice Finkelstein's ruling applied only to marketing material sent to companies with existing domain names. This made up only a small percentage of Domain Names Australia's business.

"Most of our marketing material targets companies with no existing web presence and could not therefore be regarded as misleading within the meaning of this ruling," Rafferty said.

Disspain said that following the appeal, DNA would face a class-action lawsuit.

The auDA would use the courts to secure refunds for people who sent money to DNA after receiving its marketing, he said. Nonetheless, DNA said it had modified its marketing practices to comply with the Federal Court ruling, pending the appeal, set for August.

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