The Federal Court has held that Domain Register Pty Ltd (Domain Register) engaged in misleading or deceptive conduct by issuing domain name registration notices which were misleadingly similar to invoices for payment. Domain Register carries on business as a supplier of internet domain name registration services.
Between January 2011 and May 2014, Domain Register sent approximately 300,000 unsolicited notices to businesses. The Director of Consumer Affairs Victoria alleged that the notices looked similar to a renewal invoice for the businesses' existing domain names. However the notices in fact related to the registration of a new domain name at a further cost. The notices offered to register the ".com" equivalent of their existing ".com.au" domain name. On the understanding that they were paying for a renewal of their existing domain name, a number of businesses obtained registration of a new domain name that they did not want and did not intend to acquire.
Domain Register argued that most businesses were aware that the notices were offers to provide services rather than invoices and noted that a substantial number of recipients did not make any payment upon receiving the notices.
However it was held that this conduct was at least likely to mislead or deceive which is prohibited by the Australian Consumer Law. A number of factors contributed to the finding that the invoices were misleading or deceptive. In particular, the notices were styled to look like invoices see example here. This was in part evidenced by the fact that the notices were specifically addressed and targeted to each business depending on their domain name registration, unlike most advertising flyers which are not so personalised. The Court held that a person reading the notice would not be likely to have noticed that the ".com" domain name offered in the notice differed from their existing ".com.au" domain name. While the notices contained text stating that it was just an "invitation to register", the notice was styled to de-emphasise that information and people were likely to have missed that information.
A hearing regarding the appropriate penalties to be imposed will be heard at a later date. The maximum penalty per breach is currently AU$1.1m for corporations and AU$220,000 for individuals.
A copy of the full judgement can be found here.