Official Law Firm of the Australian Open
16 November 2006
By Express Post
Mr Dmitri Rytsk
PO Box 4102
NORTH CURL CURL NSW 2099
Dear Mr Rytsk
Melbourne Sydney
Our reference
JAF.ABW.1781284
Google Inc. Potential Trade Mark Opposition and Trade Mark Infringement, Misleading & Deceptive Conduct and Passing Off
We refer to your email dated 15 November 2006 in relation to the above matter.
We confirm that you have removed all of your material from the website located at domain name www.googlebay.com.au (the Domain Name) and that you have re directed the Domain Name to our client's website. However, the registration of the Domain Name constitutes trade mark infringement, misleading & deceptive conduct and the tort of passing off. We also note that you have not filed a Notice of Withdrawal with respect to Australian Trade Mark Application No. 1118972 "GOOGLEBAY" which was advertised for acceptance on 17 September 2006.
In the circumstances, our client has instructed us to repeat the demands as set out in our letter dated 3 November 2006 and require that you comply with the following by 5pm on 24 November 2006:
1 . That you immediately file a Notice of Withdrawal with respect to the GOOGLEBAY Trade
We have attached the completed Notice of Withdrawal Form and demand that you sign this form and return it to us so that we can filed it with IP Australia and the GOOGLEBAY Trade Mark can be withdrawn
2. That you provide the following written undertaking:
1, Dmitri Rytsk, whether by myself, my employees, servants, agents or otherwise will immediately cease and forever refrain from using any marks which are substantially identical with andlor deceptively to the mark "GOOGLE" andlor any other marks which are registered to Google Inc. 1 will also refrain from filing any trade mark applications with IP Australia for any marks which are substantially identical with andlor deceptively to the mark "GOOGLE" andlor any other marks which are registered to Google Inc;
Level 29
200 Queen street
GPO Box 4388 Melbourne VIC 3000 Partner Contact
Melbourne VIC 3001 Australia Tony Watson Jonathan Feder
DX 406 Melbourne telephone: +61 3 9205 2000 telephone: (03) 9205 2000 telephone: (03) 9640 4375
www.middletons.com.au facsimile: +613 9205 2055 tony.watson@middletons.com.au jonathan.feder@middletons.com.au
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The written undertakings can be provided by executing the attached document headed "Undertakings" before a witness and returning it to us.
3. That you immediately assign ownership of the Domain Name to our client.
We require that you sign the attached letter and return it to us so that ownership of the domain name located at www.googlebay.com.au can be effected.
If you do not comply with our client's demands within the time specified then we are instructed to file a Notice of Opposition with respect to the GOOGLEBAY Trade Mark. In addition, we will obtain our client's instructions regarding issuing proceedings in the Federal Court of Australia seeking, inter alia, interlocutory and permanent injunctions restraining your wrongful conduct.
Yours faithfully
Tony Watson
Partner
encl
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GOOGLE INC.
DMITRI RYTSK
UNDERTAKINGS
1, DMITRI RYTSK of 16 Jocelyn Street in North Curl Curl in the State of New South Wales undertake that:
1, whether by myself, my employees, servants, agents or otherwise will cease and forever refrain from using any marks which are substantially identical with andlor deceptively to the mark "GOOGLE andlor any other marks which are registered to Google Inc. 1 will also refrain from filing any trade mark applications with IP Australia for any marks which are substantially identical with andfor deceptively to the mark GOOGLE andlor any other marks which are registered to Google Inc.
Date: 2006
Signed by DMITRI RYTSK
in the presence of:
. .
Signature
Signature of witness
. .
Name of witness
(please print)
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16 November 2006
Enetica
PO Box 2050
BURWOOD NSW 2134
Dear Sir/Madam
Change of Registrant www.googlebay.com.au
1 request that the domain name located at www.googlebay.com.au (the Domain Name) be transferred to Google Inc. This request has been made as 1 have has entered into an agreement to transfer the Domain Name to Google Inc. in settlement of a dispute between the parties, and the Deed of Settlement includes the transfer of the domain name licence.
Yours faithfully
Dmitri Rytsk
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