SellBuyNZ is New Zealand’s largest online website for resales and auctions. It hasbeen operating since 2012. SellBuyNZ is well-known throughout New Zealand andcommentators often describe it as “the leading online marketplace and classifiedadvertising platform in New Zealand”. It has about a 80% share of the New Zealandonline auction market.“SELLBUYNZ” is registered as a trade mark for several classes of goods andservices, including:- Class 9 for business facilitation and online auction services; and- Class 35 for sales of goods including in the fields of health and beauty,antiques and collectables, furniture and household effects, art, baby products,books, farming, ... and the provision of all of these online via the Internet orother computer networks.In addition to those goods named in classes 9 and 35 above, the Trade Mark Registerrecords over 150 other types of goods and services.“Sell & Bye” started business in New Zealand in 2020 and the business has becomeone of SellBuyNZ’s competitors as it also operates an online auction website. Itswebsite operates in a similar way to how SellBuyNZ’s website operates. Sell & Byealso facilitate sales of a range of goods and services, including those in classes 9 and35.To increase its market share Sell & Bye entered into an online campaign, in 2022,using Google’s AdWords service, which includes using SellBuyNZ (and variants of itsuch as Buy and Sell NZ, SellByeNZ) as keywords. When a Google user searches for“SellBuyNZ” (or a variant) the search results will frequently show not only links toSellBuyNZ’s website, but also links to Sell & Bye’s website. Also, depending on thevariant used and other factors relating to the user, Sell & Bye’s website is sometimesthe first listed website in the search results.One of Sell & Bye’s online sites, which exists as part of its website, says the following:“tired of SELLBUYNZ, use Sell & Bye for a fresh approach”A Google user may find a result that links to this website page if searching forSellBuyNZ (or a variant) or for Sell & Bye.Apart from the above one instance of a reference to “SELLBUYNZ”, on a websitepage, the only other use that Sell & Bye make of SELLBUYNZ (and variants) is asAdWords/keywords.Advise SellBuyNZ about any causes of action it might have against Sell & Byeunder New Zealand law.If you need more facts, you should state the nature of the facts you consider areneeded and why you need them. Statements such as “more facts are needed”without explaining why they might be needed should not be used.
Question
SellBuyNZ is New Zealand’s largest online website for resales and auctions. It hasbeen operating since 2012. SellBuyNZ is well-known throughout New Zealand andcommentators often describe it as “the leading online marketplace and classifiedadvertising platform in New Zealand”. It has about a 80% share of the New Zealandonline auction market.“SELLBUYNZ” is registered as a trade mark for several classes of goods andservices, including:- Class 9 for business facilitation and online auction services; and- Class 35 for sales of goods including in the fields of health and beauty,antiques and collectables, furniture and household effects, art, baby products,books, farming, ... and the provision of all of these online via the Internet orother computer networks.In addition to those goods named in classes 9 and 35 above, the Trade Mark Registerrecords over 150 other types of goods and services.“Sell & Bye” started business in New Zealand in 2020 and the business has becomeone of SellBuyNZ’s competitors as it also operates an online auction website. Itswebsite operates in a similar way to how SellBuyNZ’s website operates. Sell & Byealso facilitate sales of a range of goods and services, including those in classes 9 and35.To increase its market share Sell & Bye entered into an online campaign, in 2022,using Google’s AdWords service, which includes using SellBuyNZ (and variants of itsuch as Buy and Sell NZ, SellByeNZ) as keywords. When a Google user searches for“SellBuyNZ” (or a variant) the search results will frequently show not only links toSellBuyNZ’s website, but also links to Sell & Bye’s website. Also, depending on thevariant used and other factors relating to the user, Sell & Bye’s website is sometimesthe first listed website in the search results.One of Sell & Bye’s online sites, which exists as part of its website, says the following:“tired of SELLBUYNZ, use Sell & Bye for a fresh approach”A Google user may find a result that links to this website page if searching forSellBuyNZ (or a variant) or for Sell & Bye.Apart from the above one instance of a reference to “SELLBUYNZ”, on a websitepage, the only other use that Sell & Bye make of SELLBUYNZ (and variants) is asAdWords/keywords.Advise SellBuyNZ about any causes of action it might have against Sell & Byeunder New Zealand law.If you need more facts, you should state the nature of the facts you consider areneeded and why you need them. Statements such as “more facts are needed”without explaining why they might be needed should not be used.
Solution
SellBuyNZ should consider the following causes of action it might have against Sell & Bye under New Zealand law:
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Trademark Infringement: SellBuyNZ has registered "SELLBUYNZ" as a trademark for various goods and services, including business facilitation and online auction services (Class 9) and sales of goods in different categories (Class 35). Sell & Bye's use of similar keywords, such as "SellBuyNZ" and variants, in their Google AdWords campaign may constitute trademark infringement. This is because it can create confusion among consumers and potentially divert customers away from SellBuyNZ's website.
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Passing Off: Sell & Bye's use of the phrase "tired of SELLBUYNZ, use Sell & Bye for a fresh approach" on their website page could be seen as an attempt to mislead consumers and create a false association with SellBuyNZ. This may amount to passing off, which is a common law tort that protects the goodwill and reputation of a business.
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Unfair Competition: Sell & Bye's online campaign, which includes using SellBuyNZ and its variants as keywords, may be seen as an unfair competition practice. By intentionally using SellBuyNZ's name to gain visibility and potentially divert customers, Sell & Bye could be engaging in unfair competition, which is prohibited under New Zealand law.
SellBuyNZ should consult with a legal professional to assess the strength of these potential causes of action and determine the appropriate course of action to protect its rights and market share.
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