Cyberspace November 2007

Domains again

In an effort to increase the spend of international organisations on Internet domains, ICANN has approved several new top level domains, including .mobi, .asia and .jobs. Of these, the only one that seems to make sense to me is .asia, and even then I have to wonder. I can appreciate that in mainland Asia there might be an interest in limiting domain name registration and possibly searches to a given geographic region. The European Union has something similar to this in the .eu namespace. Registration in .asia is available to businesses in 73 countries ranging from New Zealand to Kyrgyzstan, Iran, Iraq and Syria. So... that's the other half of the planet covered. Between the .eu and .asia namespaces you might wonder why not have a world-wide namespace? Oh, that would be .com or .net. Yes, I'm a bit cynical about most of these new top-level-domains, but that's just me.

Anyway, this led me to reconsider brand and trademark protection generally (particularly since I look after my firm's domain names). There are probably at least eight different top-level-domains (TLDs) that a medium/large business in Australia/New Zealand might want to consider, including com, net, com.au, net.au, org, org.au, asia, and mobi. Given that it would cost under AUD$1,000 a year to maintain registration for these, why wouldn't you? Well, if your business name was "Sydney Law" or "Smith & Co" then I'd be registering as many TLDs as I could get my hands on. That's because a lot of organisations could legitimately lay claim to those names, and therefore there'll be a lot of competition. If your business name is "Walter & Durrham" then there's not going to be a lot of competition for walterdurrham.com (unregistered as I write). Of course, due to registration rules anyone could register that in the .com namespace, but only a business with a registered business name and ABN could do it in the .au namespace. After registering walterdurrham.com.au I'd be fairly relaxed about registering walterdurrham.net.au.

Online contracts

In the early days of email a lot of people got excited about having an image of their signature in emails to "sign" them. Regular readers will know that I thought that clumsy and unnecessary. The intention to bind oneself to correspondence or even agreements doesn't need to rely on a signature. One of the greatest examples of this in 2007 was the eBay case of Smythe v Thomas [2007] NSWSC 844 (3 August 2007) in which Rein AJ ordered that an eBay auction of a Wirraway Warbird aircraft for the reserve price of $150,000 was binding on the vendor. There was an eBay auction which concluded but things soon fell off the rails. There was a "Buy now" button for $275,000 ( i.e. buy now and avoid the auction), and it also turned out that the vendor said he had another expression of interest for $220,000. In general terms it is clear that the vendor was trying to get the best price for his rare aircraft from several avenues. The problem was that one of those avenues was eBay, and he purported to conduct an online auction.

The law applied was that of NSW, and in particular, s60 of the Sale of Goods Act 1923. The vendor's arguments generally revolved around lack of an agreement between him and the bidder due to uncertainty and lack of offer and acceptance; i.e. the eBay "auction" was no more than an invitation to treat. He also argued that any agreements which might have existed were between each party and eBay, not between the two parties directly. However, Rein AJ characterised the eBay auction (correctly in my view) as just an ordinary auction, albeit without an auctioneer (eBay claims not to be one) or a gavel. It had a method of ending the auction and it created a binding agreement, albeit in a non-traditional fashion. He ordered specific performance of the agreement, and I presume Mr Smythe flew off into the sunset.