middletons

Australian Trade Mark Application No. 1118972 'WOGLEBAY" in class 35 in the name of Dmitri Rytsk andOpposition by Google Inc.

We enclose by way of service a Notice of Opposition in relation to Australian Trade Mark

Application No. 1118972 "GOOGLEBAY" in class 35 which was filed with IP Australia filed

OX 405 Melbourne telephone: +61 3 9205 2000 telephone: (03) 9640 4273 telephone: (03) 9640 4375

www.middletons.com.au facsimile: +61 3 9205 2055 t Y.watson@middletons.com.au jonathan.feder@middletons.com,aL,

TRADE MARKS ACT 1995

NOTICE OF OPPOSITION

IN THE MATTER of Australian Trade Mark Application No 1118972 GOOGLEBAY in the name of Dmitri Rytsk

and

IN THE MATTER of Opposition by Google Inc.

Google Inc. (the Opponent) gives notice of opposition to registration of Australian Trade Mark Application No. 1118972 (the Trade Mark) in the name of Dmitri Rytsk (the Applicant).

The grounds of opposition are as follows:

1. the Trade Mark is not capable of distinguishing the Applicant's goods andlor services in

respect of which the Trade Mark is sought to be registered from the goods or services of other persons, in particular the Opponent's goods and services;

the use of the Trade Mark in respect of the goods and/or services for which the Trade Mark is sought to be registered would be likely to lead to passing off or andlor be likely to deceive or cause confusion because of some connotation that the Trade Mark or a sign contained within the Trade Mark has;

the Applicant's use of the Trade Mark in relation to the goods and/or services would be contrary to the provisions of sections 52 and 53 of the Trade Practices Act 1974 (Cth) or section 31 of the Copyright Act 1968 (Cth);

4. the Applicant is not the owner of the Trade Mark;

by reason of its use of the Trade Mark in Australia, the Opponent. is the proprietor of the Trade Mark in relation to goods that are the same or of the same description as the goods andlor services closely related to the goods;

6. the Trade Mark contains or consists of scandalous matter;

7. the use of the Trade Mark would be contrary to law;

8. the Trade Mark is substantially identical with or deceptively similar to a trade mark that,

before the priority date of the Trade Mark, had acquired a reputation in Australia such that

the use of the Trade Mark in respect of the goods andlor services for which the Trade Mark

is sought to be registered would be likely to deceive or cause confusion;

9. the Applicant is not entitled to registration of the Trade Mark on the basis of honest

concurrent use or prior continuous use;

10. the Trade Mark is not inherently adapted to distinguish the designated goods or services from the goods or services of other persons and the Applicant has not used the Trade Mark before the filing date of the application, such that it does not distinguish the designated goods or services as those of the Applicant;

docs 175316v1 JAF

11. the Trade Mark is substantially identical with, or deceptively similar to, one or more trade mark registrations andlor applications having an earlier priority date in respect of similar goods/services or closely related goods/services being:

12. the Trade Mark is substantially identical with, or deceptively similar to, a trade mark that is well known in Australia (the well known mark) in relation to:

(a) goods (unrelated goods) that are not of the same description as that of the goods in

respect of which the well known mark is registered (registered goods) or are not

closely related to services in respect of which the well known mark is reg registered

services (unrelated services) that are not of the same description as that of the registered services or are not closely related to registered goods; and

because the well known mark is well known, the Trade Mark would be likely to be taken as indicating a connection 'between the unrelated goods or unrelated services and the registered owner of the well known mark and, for that reason, the registered owner of the well known mark is likely to be adversely affected.

13. the Applicant has not in good faith used, or authorised the. c,,se of, the Trade Mark in

Australia and at the date of the application for registration of the Trade Mark the Applicant

(b) to assign the Trade Mark to a body corporate for use by the body corporate, in

Australia,

in relation to the goods and/or services for which the Trade Mark is sought to be registered.

14. the Trade Mark contains or consists of a sign that is a geographical indication for goods originating in a country other than the country in which the relevant goods originated;

15. the registration of the Trade Marks would prejudice the Opponent and/or its licensees in the conduct of its business;

16. the Registrar accepted the applications for registration of the Trade Mark on the basis of evidence or representations that were false in material particulars;

17. by reason of the matters set forth in any one or more of the foregoing paragraphs, the Trade

Mark was accepted by reason of an error or omission in the course of the examination; and

18. by reason of the matters set forth in any one or more of the foregoing paragraphs or otherwise in the special circumstances of the case, the Trade Mark should not be registered in relation to all or any of the goods or services.

A copy of this notice is being served on the Applicant, by registered mail, at his address for service:

Mr Dmitri Rytsk 16 Jocelyn Street NORTH CURL CURL NSW 2099

The Opponent's address for service is:

Middletons Level 25, Rialto South Tower 525 Collins Street MELBOURNE VIC 3000 Ref: ABW.JAF.1781284

DATED this 10th day of January 2007.

................. .................................. .........

Middletons

Solicitors for the Opponent

To: The Registrar of Trade Marks

Fee: $250.00

docs 175316M JAF