Corrs, Chambers Westgarth

Description:

Keywords: Australia

Category: 16

Body text:

Our roference
EXllAlrcATH4300-9059360
Mr Kosiorek and Mr Brown
Governor Phillip Tower
1 Farrer Place Sydney NSW 2000
GPO Box 9925 NSW 2001
Tel (02) 9210 6500
Fax (02) 9210 661 1
www.Gorrs.com.au
1 October 2010
Private and conf¡dent¡al
By emailand post:
Ken Kosiorek
2121 Seagull Lane
San Diego,
cA 92123-3732
USA
Email: kenweld@san.rr.com
John Brown
C/O lnternet Business Design Australia
213Oa Wanruick Street,
Toowoomba
QLD 4350
Email: septl 2009@ymail.com ;
cabaction@gma¡l.com
Dear Mr Kosiorek and Mr Brown
"Xt3 Newsletter" and other conduct
We act for the Catholic Archdiocese of Sydney.
We have been provided by our client with copies of emails in which you have reproduced
content and trade marks from our client's newsletter (Xt3 Newsletter) and its website
t¡,rww.xt3.com. We are instructed by our client that these emails have been received by its
personnel and also by recipients within the Catholic hierarchy and the broader Catholic
Church in Australia.
Your conduct in sending these emails infringes upon our clients rights including the
following intellectual property rights:
a) your newsletter makes use of a number of our client's trade marks, brand names,
insignia, including "Xt3", in which our client has established substantial reputation
and goodwill;
b) you have produced and distributed materials which substantially reproduce the Xt3
Newsletter and other materials of our client which are the subject of copyright
protection; and
c) your newsletter passes off as the Xt3 Newsletter as:
(i) its look and feel is substantially similar to that of the Xt3 Newsletter, for
example, it utilises the same general layout, colouring, font and design; and
(i¡) it includes an identical footer to that in the Xt3 Newsletter stating that the
newsletter originated from Catholic Communications Archdiocese of
Sydney.
Furthermore, our client is concerned that the provision of this newsletter as described
above is likely to mislead or deceive recipients into thinking that you or this newsletter, at a
minimum, is associated with or has the endorsement of the Archdiocese of Sydney or of
the broader Catholic Church. ln fact, we are instructed that our client has received
complaints and requests for clarification from third party recipients regarding emails
received from you. As you may be aware, sections 42 and 44(e) of lhe Fair Trading Act
7987 (NSW) prohibit persons from engaging in conduct that is misleading or deceptive or is
likely to mislead or deceive, and from representing that goods or services have sponsorship
or approval they do not have. As the newsletter is not an official newsletter of the
Archdiocese of Sydney and does not have any association or endorsement as implied, ln
our view, your conduct clearly infringes sections 42 and 44(e) of the Fair Trading Act 1987
(NSW).
Our client requires you to cease and desist from publishing and distributing this newsletter
and similar newsletters.
Our client will continue to monitor vigorously the distribution of any infringing material by
you. Should this occur, our client will not hesitate to enforce its rights which lnclude
seeking an injunction, damages and payment of our client's legal costs.
Additionally, our client has instructed us that each of you has been sending
communications to personal email accounts that are extremely intimidating, threatening,
offensive and harmful. Please immediately discontinue sending such communications.
Our client cannot ignore what cleady is the inappropriate publication and distribution of
emails by you. Should you continue to send such emails, our client will not hesitate to
enforce its legal rights.
Yours faithfully
Corrs Chambers Westgarth