Abortion Law Reform Association of New Zealand Inc v mybook [2010] NZDNC 474
[2010] - NZDNC - 474
Transfer ; Complainant's Rights
alranz.org.nz - Transferred - Rights
The complainant was incorporated in 1971 for the purpose of advocating for the women's right to choose on the topic of abortion. The complainant stated that it had used ALRANZ as its acronym since 1971.
The domain name was registered in 2009 and the website featured a late-term foetus. The site alleged to be the complainant but also featured links that were stated to connect to the real ALRANZ website.
The complainant has a long history of using the name ALRANZ and claimed rights similar to common-law reputation. The complainant charged that the Respondent's registration was unfair and that the respondent could not use the fair use defence because the site was not merely used as a criticism but also as a blocking registration.
There are no registered or unregistered trademark rights. The expert stated that the best route for the complainant to take is to use section 9 of the Fair Trading Act which would find liability in entities that use ALRANZ in a misleading or deceptive way to cause damage to the complainant. Also basing the decision on the fact that the complainant would likely be able to obtain an injunction under the Act, the expert found that the complainant did have rights beyond the normal trademark rights.
The expert found that the respondent has used the domain name in a way that is detrimental to the complainant's rights mainly due to how likely the users would be confused, misled or deceived by the website. The expert identified that the complainant did not rely on any form of trademark rights, registered or not. Instead, the complainant asserted that it had a reputation in the expression ALRANZ. The complainant would find it difficult to claim rights in passing off, which does require some business activities that could be damaged. Since the complainant did not provide evidence or claim that their donation or subscription have been damaged, the expert did not carry on this point.