Vous êtes sur la page 1sur 16

Form 33

Rule 16.32

Defence Statement
Federal Court of Australia
District Registry: Victoria
Division: General
No.

VID373 of 2015

SEEK Ltd. (ACN 080 075 314)


Applicant
Stephen Fang
Respondent
The Respondent relies on the following facts in defence of the claim:
1. The Respondent admit the facts alleged in paragraphs [14-16] of the Statement of Claim.
2. The Respondent deny the allegations contained in paragraphs [17-49] of the Statement
of Claim.
A. The Respondents Contentions
3. Many companies seek to build trademarks around common words because of their
familiarity eg. Apple, Billabong, Boss, Chrome, Coach, Diesel, Gap, Sprite, Village, Virgin,
7-11, however, these are almost universally Nouns . "Seek" is a Verb and describes the
key reason behind why the internet was invented - to allow people to seek information.
My website serves as a utility for visitors to seek information about Estates which is why
I called it http://seek.estate (my website) - the use of the verb seek here is purely
descriptive and not intended to pass off or misrepresent or infringe upon any of the
Applicants Registered Trademarks.
Filed on behalf of (name & role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Email
Address for service

Stephen Fang, the Respondent


Stephen Fang

Fax

(include state and postcode)


[Form approved 01/08/2011]

4. The .estate Top Level Domain (TLD) portion of the domain name seek.estate should
not be dismissed as an indicia of domain, but rather a key feature of the name of the
website which clearly distinguishes it from websites operated by the Applicant. In (REA
Group Ltd v Real Estate 1 Ltd [2013] FCA 559), the Court (Bromberg J) found at [233]
that:
The essential or distinguishing feature of REA's mark is the domain name in its
entirety. The inclusion of .com.au as part of that essential feature is necessary
because the highly descriptive nature of "realestate" on its own would not be enough
to establish brand identity; and the entirety of the domain name needs to be
considered to establish if there is deceptive similarity.
Similarly, the use of the verb seek and the .estate in the domain name seek.estate
merely describes the website as a destination for people to seek information about
matters related to Estates and is highly unlikely to deceive or confuse the average
person into thinking that it is operated by the Applicant given that Seek Ltd. has never
engaged in, operated, marketed or advertised a Real Estate listing website, especially a
website catering for Private home buyers similar to http://seek.estate.
5. The Applicants Trademarks set out in [12] of the statement of claim are listed under
Class 35 - General Classified Advertising and Class 16 Printed Matter. For the purposes
of this case, only the Class 35 mark(s) appear to be relevant. Oxford Dictionary defines
Classified Advertising as: small advertisements arranged in groups according to their
subject, that are placed by people or small companies who want to buy or sell something,
find or offer a job, etc 1
Due to the nature of purchasing Real Estate which can be a highly emotional affair with
Buyers often having to inspect several homes, wanting to know information such as
nearby schools, local cafes, amenities, weather, internet speeds, recent home sales,
crime rates, neighbours, all out which may be a crucial factor to a family before deciding
on the right home, a classified advertising system will not work for Real Estate websites.
Hence Real Estate websites are classed as a separate Class to General Classified
websites by the Australian Trademark Office Class: 36 Providing information,
including online, about insurance, financial and monetary affairs and real estate affairs.
Provision of information relating to real estate. 2 My website operates in Class 36 of
the ATMO classification, an entirely different Service Class to Class 35 - General
Classified Advertising and a Class which the Applicant does not have a reputation or hold
a trademark.
1
2

http://www.oxfordlearnersdictionaries.com/definition/american_english/classified-advertisements
http://xeno.ipaustralia.gov.au/tmgns/facelets/trademarkclass.xhtml?classId=36

6. The logo used on my website is features a home and is has a bright orange
seek.estate. The presence and visual emphasis accorded to the home is clearly at
odds with all of the logos owned by the Applicant which prominently feature an arrow
pointing right. There are also numerous disclaimers including one at the top navigation
bar of every single page in my website which clearly states Were not affiliated with
SEEK Ltd.

Figure 1 - seek.estate Logo

7. In Hearst Communications Inc v H.A.G. Imports Pty Ltd [2014] ATMO 67 (30 July 2014)
Delegate N Worth said at [28] of the word Cosmopolitan - It is a word often
associated with sophistication, worldliness and glamour, and it is highly likely that both
parties adopted it for precisely this reason (for its part the Applicant declares as
much). Similarly given the fundamental nature of the internet is to allow people to
seek information, it is probably one of the key reasons why the Bassat Brothers the cofounders of the Seek Ltd. - decided to use the generic verb seek in their domain name
when they registered the domain seek.com.au as opposed to a more distinctive brand
name such as Coke or Nike because the word has had thousands of years of
continuous English Language usage since the Bible - Matthew 7:7 KJV Ask, and it shall
be given you; seek, and ye shall find; It is for this key reason that Applicant has lost all
previous proceedings in the Domain Name Arbitration and Mediation service (WIPO)
against websites which include the verb seek in the domain name with the Panelist M
Spence noting the SEEK mark in (Seek Limited v. Independent Mortgage Brokers Pty Ltd.
Case No. DAU2006-0012) at [6A] to be "on the weaker side of the range of distinctive
marks and the word seek to be an ordinary descriptive word.
8. The Applicants core business and reputation in Australia is focused on Job Listings and
Careers. In the latest Investor Presentation Report available on their website
http://ir.seek.com.au/ titled: FY15 Half Year Results it states in bold that SEEK is
having a global impact improving people's lives across employment & education. Our
Purpose: To help people live more fulfilling and productive working lives and help
organisations succeed. In the entirety of the Eighty-one page .pdf document there is

not one mention of the term real estate or more generally estate.3 The Applicant
clearly has never operated or marketed a Real Estate website and does not have plans
to do so in the near future and thus has not acquired a sufficient reputation in Real
Estate for consumers to automatically expect a Real Estate Listing service with a generic
verb seek in the domain would be linked to it. Search Engines today such as Google
run an array of sophisticated algorithms knowing the qualities and content of a Real
Estate website which make it desirable to the end user and will not rank any site higher
in the results page simply because of the seek in the domain name. For a website to
rank highly on a Search Engine Result page today it must hold content which is directly
related to the search query. Thus there is no initial interest confusion for the average
person who searches a property using a Search Engine and is led to my site.
9. As noted before, the Applicant has Lost all previous cases in the Domain name WIPO
Arbitration and Mediation service against other parties who have included the word
"seek" in their domain names. The cases are:
Seek Limited v. Independent Mortgage Brokers Pty Ltd. Case No. DAU20060012 over the domain names seekfinance.net.au; seekhouse.com.au;
seekinsurance.com.au;seekproperty.com.au;
seekrealestate.com.au;seeksuper.com.au
Seek Limited v. Arazac Nominees Pty Ltd. Case No. DAU2006-0010 over the
domain name seekbusiness.com.au
As was the case in all previous cases and in this case it can be strongly argued that giving
the Applicant an unnecessarily wide monopoly over the word seek and allowing the
Applicant to restrict and control the vocabulary other webmasters can use to describe
their websites; if upheld; will ultimately only reduce and erode the utility of the English
language as a medium for communication and potentially harm innovation and freedom
of speech in cyberspace.
10. If the Applicant has ever intended to enter the Real Estate advertising business it should
have filed a Class 36 mark with the Australia Trademarks Office (ATMO) in the first
instance:
a. As a legal precaution.
b. And to clearly communicate to the broader business community about their
intention to enter the Real Estate advertising business.

http://ir.seek.com.au/FormBuilder/_Resource/_module/NCkygw0x0kmQG8Q1PXfUNg/file/FY15_Half_Year_Result
s_Presentation.pdf

In fact when I registered the domain name seek.estate I checked whether any
companies had in fact lodged a Class 36 mark for the term and for the word seek and
it was only when I found that no one had Registered a mark, that I then began using the
name. The search results for seek in ATMO Class 36 marks are shown below: 4

Figure 2. Screenshot of search results for "seek" for Class 36 ATMO marks taken 22/07/2015

In Hearst Communications Inc v H.A.G. Imports Pty Ltd [2014] ATMO 67 (30 July 2014) it
was found that the Applicant who owned a mark incorporating the word Cosmopolitan
for Printed Media could not prevent the Respondent from registering the word
Cosmopolitan as a mark for Home Wares because they were a different class of goods.
Similarly the Applicant in this case should not be able to exercise its rights to protection
of a Class 35 service when http://seek.estate is operated a Class 36 website.
11. Prior to the .estate TLD domain names being released to General Public, ICANN (the
International Body which governs all domain names) provides a Sunrise period which
according to the ICANN website is a rights protection mechanism built into the New
gTLD Program to allow trademark holders an opportunity to register Second-Level
Domains corresponding to their marks. All new gTLD Registry operators must conduct a
Sunrise period of no less than 30 days. Following this, operators are free to make their
domains available to the public; a period called 'General Availability.5 There is no

4
5

http://pericles.ipaustralia.gov.au/atmoss/Falcon.Result search result seek and class 36


https://newgtlds.icann.org/en/blog/dawn-new-era-23oct13-en

indication that the Applicant ever intended to register or utilise the seek.estate
domain name at any time in the past, even when given the chance by ICANN.
Having established reputation in the domain seek.estate which according to my
Google Adsense Performance Report is a website which generates approximately
150,000 page views per calendar month as shown in the Reports for May and June 2015
below, I believe I should be able to continue developing my website for my users.

Figure 3 - May 2015 Google Adsense Report for seek.estate

Figure 4 - June 2015 Google Adsense Report for seek.estate

B. Use as a Trademark
12. The common element of seek in the domain name seek.estate does not make it
confusingly similar to the Applicants trademark SEEK or any other name or mark in
which it has rights to as demonstrated by a number of recent decisions by ATMO:

TRADIEBAY is not confusingly similar to EBAY because TRADIE and BAY are
joined to form an invented word leading to a different interpretation and
significance with the only similarity being the suffix. eBay Inc. v Tradiebay Pty.
Limited [2013] ATMO 58 (24 July 2013)

DNA SERUM (and device) is not confusingly similar to DNA because the
common word DNA is diminished by the presence and visual emphasis
accorded to the helix device and the word SERUM. DNA Products Aust Pty Ltd
v Botany Essentials Pty Limited [2013] ATMO 82 (21 October 2013)
LADY RIDER (and device) is not confusingly similar to RIDERS (owned by Lee)
because the overall appearance and impression conveyed are different. The
H.D. Lee Company, Inc. v Tracey Taylor [2013] ATMO 49 (13 June 2013)
Howards' Hubby Hire (and device) is not confusingly similar to HIRE A HUBBY
because the house device, the HOWARDS name and the stacked alliteration
of the 'H' cannot be disregarded or discounted as the common elements
allude to the services offered. Highdawn Pty Ltd v John Howard [2013] ATMO
48 (13 June 2013)

13. In (Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75 (20 June
2014), the Applicant owners of the mark LIFT SHOP commenced action in the
Federal Court because the Respondent used the phrase Lift Shop as a descriptive
term in the title of their website www.easy-living.com.au. The Full Court of Federal
Court upheld the primary judges finding that the respondents use of the phrase
LIFT SHOP was not use as a trade mark in the relevant sense. The Court
(Besanko, Yates & Mortimer JJ) concluded in [46]:
The use of the words Lift Shop as shown in the entries quoted in paragraphs *9+[11], makes clear that their only functional significance was to describe the character
of that business. Their use by the respondent was not to distinguish its business from
others. To the contrary, in the larger setting provided by the results pages, the use of
those words was to designate, and would have been understood as designating, that
the respondents business was of the same character as, or at least of a similar
character to, other businesses grouped and operating as lift shops. Such use is the
antithesis of trade mark use.

Figure 5 - Front page of seek.estate

Similarly a quick scan of my homepage reveals clearly in the top navigation bar of
every page in my website a disclaimer Were not affiliated with SEEK Ltd. also well
as the heading seek.estate was founded on the belief that Ordinary people should
be able to List and Sell their Homes for Free. We want You to Profit from the Sale of
Your Property not Agents. I propose that anymore familiar with SEEK Ltd. will
quickly realise that phrases like this would not be a Mission Statement associated
with an established, publicly listed company with an extensive history in Job
advertising and as such would not be confused about the origin of the website.
14. There are numerous registered domain names which include the word seek and are
not affiliated with the Applicant including <seekajob.com>, <seekjob.com>,
<seekbiz.com>, <seeklawyer.com> and <seekalawyer.com>, <seekfinance.net.au>,
<seekhouse.com.au>, <seekinsurance.com.au>, <seekproperty.com.au>,
<seekrealestate.com.au>, <seeksuper.com.au>, <seekre.com.au>,
<seekbusiness.com.au>, <jobseek.com>. The Applicant does not appear to object to the
fair use of the verb seek in those websites and appears to be targeting my domain at
random and without a clear reason why they have not chosen to undertake similar
proceedings against the owners of all the other domain names which also include seek.
15. Furthermore the Applicant does not hold any rights in any of the websites listed in
paragraph [14] and nor should the Applicant hold any rights in <seek.estate> simply
because the word seek is used therein, as the entirety of the domain name is
conjoined to form an invented term used to describe my Real Estate website. In (REA
Group Ltd v Real Estate 1 Ltd [2013] FCA 559) the Court heard that the combination of

"real estate" with ".com.au" created a term which was distinctive of REA's residential
property portal. Likewise the combination of seek.estate creates a term that is
distinctively different from the Applicants marks catering a ATMO Class 36 service
whilst the Applicants trademarks only hold for ATMO Class 35 services.
C. Deceptive Similarity
16. The fear that many legal professionals have about trademarks over common English
words echo into history. As far back as the 1909 there were apprehensions about:
wealthy traders [who] are habitually eager to enclose part of the great common of
the English language and to exclude the general public of the present day and of the
future from access to the enclosure. (Joseph Crosfield & Son's Application (1909)
RPC 26 837 at [854]).
17. The principle around Deceptive Similarity as it relates to common words is further
explained in Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd
[1991] FCA 310; (1991) 30 FCR 326, when Gummow J said at [347-348]:
Where the trade mark allegedly used by the defendant comprises ordinary English
words ... then ... that circumstance may be taken into account by the court in the
process of reasoning by which it accepts or rejects a submission that the use in
question is not a trade mark use but a description of the goods in question.
18. The Applicant has misinterpreted the reasoning behind Rangiah J recent ruling in (Accor
Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2015] FCA 554) and
erroneously applied it here in arguing that the use of seek in seek.estate makes it
Deceptively Similar to the Applicants Registered Marks. The term Harbour Lights is
not a commonly used phrase or descriptive phrase in the English language. When used
as a Business Name it is clearly distinctive and having established a reputation under
that name, a Registered Trademark Owner should be afforded protection under the law
for that name. In the same vein, companies such as Hungry Jacks or Central Equity
may take offence at someone setting up a rival business called Cairns Hungrys Jacks
or Central Equity Property Management and should be able to use the law to prohibit
those businesses from operating in competition with them.
19. Merely comparing the Harbour Lights and Cairns Harbour Lights with SEEK and
seek.estate is fundamentally flawed because seek is a highly descriptive and
commonly used verb and when used on its own, weakly distinctive. A more apt analogy
for this case would be to compare a fictional company called HARBOUR ltd. (Harbour)

which owns the Registered Trademark HARBOUR. Harbour is a modern high tech
company, founded by the fictional Seawalker twins, Luke and Leah, who created an app
that allows people to book ridesharing taxi-boats. Users of the app book taxi-boats
from a nearby pier using their phones GPS functionality. A Harbour taxi-boat driver will
then pick them up from that pier and drive the taxi-boat to the pier they wish to go to.
Harbour also has a Commercial division has allows for commercial bookings of large
container freight ships and a Learning division to teach the next generation of young
Harbour Drivers. Harbour is an ASX-listed company with a market capitalization in
excess of $5.8 billion under the symbol HAR and is Australia and New Zealands no.1
rideshare taxi-boat company with over $175 million invested in promoting the Harbour
brand as a ridesharing app. As a result the HARBOUR logo is well known across
Australia and receives 30,000,000 app views per month.
20. Having become wealthy, the directors of Harbour are keen to prevent the outside use of
word Harbour and tries to enclose it so only Harbour or Harbour owned entities can
use the word Harbour as a trading name. Harbour sues the following:
a. Harbour Lights a hotel based around the harbour in Cairns;
b. HarbourTown a new shopping mall based around the harbour in Melbourne;
c. Post@Harbour a new service for picking up online shopping from parcel
lockers near the harbour;
d. Harbour-Travel a travel agency where you can book tours for sightseeing
around the harbour.
e. d1g1talHarb0ur a dance festival held annually near the Harbour
f. harbour.estate a online real estate website selling estates close to the harbour.
arguing in each case that because Harbour owned the trademark HARBOUR for an app
service, the other businesses infringed upon the Harbour mark. It can be strongly
argued in each case, every single business was simply relying on using the word
harbour to describe a key function of their business and not engaging in any deceptive
conduct. Furthermore because each business was not engaged in direct competition
with Harbour or offering a service that is in the same Trademark Class as the ones
owned by Harbour, it can also be strongly argued that there is no justification for
Trademark Infringement in each case. Similarly it can be strongly argued that the use of
seek in seek.estate is purely as a descriptor of the key function of the website thus it
is not a form of Deceptive Conduct, nor is it infringing upon the Applicants marks as
they only hold ATMO Class 35 services and not for ATMO Class 36 services.
D. Passing off and breach of ss 18 and 29 of the ACL

21. The underlying guidelines of surrounding Passing off and breach of the ACL as it relates
websites were examined recently (Kosciuszko Thredbo Pty Limited v ThredboNet
Marketing Pty Limited [2013] FCA 563) (Thredbo Case). The Thredbo case provides
clear guidance about when domain names and websites do not constitute misleading
and deceptive conduct in breach of the Australian Consumer Law, or passing off. By way
of background, in that case the Applicants the operators of the Thredbo skiing resort
and www.thredbo.com.au (together, Thredbo Operator) took action against Respondent
operator of www.thredbo.com alleging that the Respondents use of "Thredbo" in
association with its online booking services constituted passing off, misleading and
deceptive conduct in contravention of the Australian Consumer Law and a breach of
contract. In a unanimous judgment, the Full Federal Court dismissed the appeal and
upheld the trial judge's decision, rejecting Thredbo Operator's claims to rights in the
name "Thredbo".
22. In the Thredbo Case, the Full Court (Siopis, Rares & Katzmann JJ) found:
consumers frequently click on website links only to find that the link doesnt
work or go where they wanted, stating at [48]: But in todays society the
ordinary or reasonable consumer seeking accommodation, or other goods or
services, on the internet will frequently click on a result in a web search
thinking it is a link to a particular site, only to find when his or her browser is
directed to the selected site that it is not the site of the supplier or business
that the consumer wanted; and
in this case, a reasonable consumer would have seen the disclaimer on
ThredboNet's websites that the site was not associated with Thredbo
Operator.
On misleading or confusing the Consumer it was found at [34]:
The primary judge observed correctly at [139] that mere confusion in the
mind of a consumer does not equate to misleading or deceptive conduct. Lord
Simonds observed in Office Cleaning 63 RPC at 43 (in a passage cited with
approval by Stephen J in Hornsby at 229)
that as long as descriptive words are used by two traders as part of their
trade names, some members of the public may well be confused no matter
what differentiating words are used.
Stephen J said that (140 CLR at 229):
[t]he risk of confusion must be accepted, to do otherwise is to give to one
who appropriates to himself descriptive words an unfair monopoly in those

words and might even deter others from pursuing the occupation which the
words describe.;

ThredboNet's online sites looked different to Thredbo Operator's sites;


accommodation at Thredbo was expensive, so a reasonable consumer would
be careful when selecting an accommodation provider, the accommodation
and its price.

23. The appearance of my website when compared to the appearance of the Applicants
websites looks vastly different and easily discernable to the average Consumer.

Figure 6 - Front page of seek.estate

Figure 7 - Front page of seek.com.au

Any a potential customer wanting to create a listing on one of the Applicants websites
who, by chance, happens to stumble upon my website will quickly see that my website
is a Free-to-list service whilst the Applicant owned websites are not, costing between:
$263 to $649 ex GST per listing.6 Furthermore I have never misrepresented my website
to the consumers as being linked to the Applicant. In the Thredbo case it was found that
the average consumer would be able to differentiate between www.thredbo.com and
www.thredbo.com.au because of the different TLDs .com and com.au thus, it can be
strongly argued that the average consumer would be able to differentiate between
domain name ending in the .estate TLD and one ending in .com.au.
24. The conditions for Listing a Home and Listing a Job are vastly different.
1. To list a Job an average web user is required to list: The skills required for a
job, educational qualifications, salary, perks, etc.
2. To list a Home an average web user is required to list: Photos of the home,
suburbs, describing local amenities and attractions etc.
Both forms of advertising require careful, sophisticated planning and are not impulse
buys. Whilst a person of "average intelligence and imperfect recollection" might go to a
supermarket an accidentally purchase a product from the shelves with similar names to
which it the law of "passing off" would apply, the same person would most likely read
the many notices across the header and footer on every page of my website stating "We
are not affiliated with SEEK Ltd" because the many steps involved in listing a home
requires more thought and hence unlikely to confuse people.
25. Any consumer who was legitimately concerned about whether my website was affiliated
with the Applicant would be expected to read the short text under that heading which
states Were not affiliated with SEEK Ltd as well as the disclaimer:
Disclaimer
Please note this website is NOT affiliated with SEEK Ltd. operator of the well known website
seek.com.au, and is not approved, endorsed or sponsored by them. Our website serves as a
utility for visitors to seek information about real estate which is why it is called it
http://seek.estate - the use of the verb seek here is descriptive and not intended to pass off or
misrepresent or infringe upon any of SEEK Ltd's trademarks.
which can be found when the user clicks on the link Were not affiliated with SEEK
Ltd. Furthermore it was noted by Gibbs CJ in s 52 of the Trade Practices Act 1974
(Cth) (which is in substantively the same terms as s 18 of the ACL) in (Parkdale

https://talent.seek.com.au/Support/OurProducts?scrollTo=JobAdTypes

Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44;
(1982) 149 CLR 191) at [199]:
a. Although it is true, as has often been said, that ordinarily a class of
consumers may include the inexperienced as well as the experienced, and
the gullible as well as the astute, the section must in my opinion by (sic)
regarded as contemplating the effect of the conduct on reasonable members
of the class. The heavy burdens which the section creates cannot have been
intended to be imposed for the benefit of persons who fail to take
reasonable care of their own interests.
26. Any risk of confusion to the Consumer from the inclusion of the word seek in the
domain name must be clearly balanced with the risk of giving the Applicant an unfair
monopoly over the verb seek. I shudder to think of a society where large corporations
are able to use the law to exclude other webmasters from using a verb like seek to
describe their websites. Who would want to live in a society where every time you try
to seek information on the internet you are led to the Applicants website(s) where
you can SEEKtm the answer because the use of the word has been restricted and
controlled by one company? What about the colloquial Mom and Dad small family
business that cant afford the, in my opinion, exorbitant fees the Applicant charges for a
website listing? Will granting the Applicant an unreasonable monopoly over the word
seek allow them to raise their listing fees even higher?
E. Loss and Damage
27. The Respondent strongly denies that the use of seek in seek.estate amounts to
infringement of the Applicants marks. As stated before the use of the verb seek in
seek.estate is purely for descriptive purposes only and is the antithesis of trade mark
use therefore there is no grounds for Damages pursuant to s126 of the TMA.
28. It can be strongly argued there is no economic loss to Applicant from my website,
because Seek Ltd. does not offer free Private Home Listings as a free or paid service on
any of their websites, therefore there is no grounds for Damages pursuant to section
236 of the ACL.
29. The Respondent strongly argues that because the Applicants core business in Job &
Careers listings and my Real Estate website business are completely disparate, existing
in separate ATMO Service Classes, there is little to no possibility of the Consumers being
misled therefore there is no grounds for Damages for Passing Off.

30. Seeking Loss and Damage from this case appears very much to me like $300/hr Lawyers
hankering for a free lunch as it is clearly evident from the that the Seek Ltd. FY15 Half
Year Results Investor Report that the Applicants websites do not generate any profit
from Real Estate advertising related operations.7 Moreover, it can be strongly argued
that the current action by the Applicant is displaying their desire to become trademark
troll in that they are attempting to sue me for Loss and Damages when plainly I am not
competing against or endangering any part of their business.
31. The overwhelming majority of websites on the Internet make little to no profit
whatsoever. Even very large websites such as Twitter.com which is ranked as the 10th
most visited website on the internet8 made a net operating loss after tax of -$162.44
million USD in their most recent quarterly report for the 3 months ending 2015-03-31.9
32. My website like the overwhelming majority of websites on the internet it is run as a
Hobby site and not as a Full-Time job. As it is a Free to List website, my only source of
revenue is from Google Adsense ads which are visible on the site. As shown previously
in Figures [3,4] of paragraph [11], I earn approximately $500 per month from ad clicks
on seek.estate based on traffic of roughly 150,000 page views per month which is only
enough to cover my hosting, storage and backup fees as well as fees paid to Telecom
Gateways for my SMS service.
33. The respondent therefore submit that this action should be dismissed, with costs.
F. Relief
34. The respondent claims relief based on the costs associated with the preparation of this
Defence including:
a. All Photocopying and Printing costs related to the examination of the numerous
cases cited in the Statement of Claim and the Defence Statement and any
relevant materials related to the defence of this case.
b. Lost Earnings from having to testify in Court as a witness and all lost Earnings for
any witnesses which may required to be present in Court for the defence of this
case.

http://ir.seek.com.au/FormBuilder/_Resource/_module/NCkygw0x0kmQG8Q1PXfUNg/file/FY15_Half_Year_Result
s_Presentation.pdf
8
http://www.alexa.com/siteinfo/twitter.com
9
https://www.google.com/finance?q=NYSE:TWTR&fstype=ii

c. All Travel and Parking costs incurred by the Respondent to defend the case in
Court and all costs related to travelling to and from Public Libraries for the
purposes accessing and conducting research related to the Defence of this case.
d. All Electricity Costs associated with the use of a Personal Computer to access and
conduct research related to the Defence of this case.
e. All Internet and Data costs associated with accessing and conducting research
related to the Defence of this case.
f. Any other costs the Court thinks fit.
Date: 20th July 2015

Signed by Stephen Fang


Respondent
Filed on behalf of (name & role of party)
Prepared by (name of person/lawyer)
Law firm (if applicable)
Tel
Email
Address for service

Stephen Fang, the Respondent


Stephen Fang

Fax

(include state and postcode)


[Form approved 01/08/2011]