British American Tobacco Australasia Limited v Sean Ngu

British American Tobacco Australasia Limited (BATA) sought to restrain Sean Ngu from continuing to use the domain name 'bat.com.au' and from operating a website at that address. BATA contended that Ngu's use of the domain name constituted a contravention of section 18 of the Australian Consumer Law (ACL), specifically by engaging in misleading or deceptive conduct, and also infringed BATA's trade mark rights. The matter came before Ian Thompson in the Federal Court of Australia.

The primary legal issues before the Court were whether Ngu's registration and use of the domain name 'bat.com.au' amounted to misleading or deceptive conduct under section 18 of the ACL, and whether such use infringed BATA's registered trade mark for "BAT". The Court was required to consider the likelihood of consumers being deceived or confused by Ngu's use of the domain name and website, and to assess whether Ngu's actions were likely to cause confusion with BATA's trade mark.

Justice Thompson found that Ngu's registration and use of the domain name 'bat.com.au' was likely to deceive or confuse consumers into believing that the website was associated with, or endorsed by, BATA. This conclusion was based on the substantial reputation and goodwill of BATA and its trade mark, and the fact that Ngu's website contained content that was unrelated to BATA's business, thereby creating a false association. The Court held that Ngu's conduct was therefore misleading or deceptive under section 18 of the ACL. Furthermore, the Court found that Ngu's use of the domain name infringed BATA's trade mark rights, as it was likely to cause confusion in the marketplace.

The Court ordered that Ngu be restrained from using the domain name 'bat.com.au' and from operating any website at that address. Ngu was also ordered to transfer the domain name to BATA.