Comments on points from various postings:

> basis that the entity that held the licence for the domain is no
> longer registered - therefore how did Dytor and Yates Real Estate obtain
> the domain when they are allegedly not the registrant?
>
> How did they obtain it?

From an earlier posting:

> The domain owners previously registered the goldcoasthomes.com.au
> domain name using a business name they registered but have since removed

Many business names were registered so that a specific domain name could be
obtained, as a business name was often the easiest eligible criteria to
meet.  Now that the eligible criteria hurdle has been dramatically lowered
(in fact almost removed, for businesses with products & services) by:

1. Allowing one entity to have multiple domain names
2. Allowing "close and substantial connection" to products / services
provided

Then there's no longer a reason to have the administrative hassle / minor
cost of renewing the business names.  I have two business names that I am
now letting lapse as I no longer need them as eligibility criteria for
domain names - as both names meet the "close and substantial connection" to
product / service provided criteria.




> According to the NSW Dept. of Fair Trading a brand name must
> be a registered trademark.

Like the internet, it is wise not to automatically believe all information
provided by a government department.  Gee, maybe government departments
source their info from the internet - scary thought!!




> The allocation and eligibility rules are quite clear, so I would suggest
> that using that as the basis of a claim against the registrant will not
> work.
>
> The only alternative that I have seen in this sort of case (if applicable
> here), is to start action under Fair Trading legislation on the basis that
> the registrant is involved in misleading and/or deceptive conduct


> amounts to passing off as them except that my clients
> haven't commenced trading as that entity yet.

Good luck with any legal case that says "we haven't started trading yet, but
they're passing themselves off as us".  Especially on a term as common as
"gold coast homes".  Still, at least the lawyers involved will make money
regardless of the outcome of the case.




> Is there any way to find out when a domain name was first registered?

The creation date of .au domain names is no longer publicly visible as it
was commonly used by unscrupulous operators as a basis for sending out dodgy
domain renewal letters.

Using some old, archived data (no, I don't have access to the creation
dates) goldcoasthomes.com.au appears to have been around for a couple of
years.  Same for similar ones including:

 goldcoastprop.com.au
 goldcoastproperty.com.au
 goldcoastrealestate.com.au
 goldcoastunits.com.au
 goldcoastapartments.com.au
 goldcoastforsale.com.au



The surest way of forcing someone to disgorge a domain name is using
Trademark Law - its clear, well established & understood, and there is a
history of documented instances and outcomes.  If you have a registered
trademark and someone else is using it as a domain name in the same
trademark class, you should have no trouble at all and few legal dramas it
getting the domain name from them.

If the would-be-Registrant has "Gold Coast Homes" as a trademark, then they
should have no problems getting the domain name from the existing
Registrant.  If they don't have it, they could apply for it.  If they apply
for it and are rejected (possibly because its already in use, is too common,
etc - I'm don't know much about this area of Trademark law!) then one would
have to question why they believe they are the only entity eligible for
goldcoasthomes as a domain name, if they're unsuccessful at getting it as a
Trademark.




Regards, Mark

Mark Hughes
Effective Business Applications Pty Ltd
+61 4 1374 3959
www.pplications.com.au
effectivebusiness§pplications.com.au