Australian cricket captain Ricky Ponting has filed a claim in the Federal Court to shut down an unauthorised website and is seeking damages against the owner of the domain name.
Lawyers for Ponting filed the claim on Christmas Eve and the website, which claimed to be "the official Ricky Ponting site", has already been taken down.
Court documents say the website caused members of the public in Australia to believe it was approved, licensed or affiliated with Ponting, when it was not.
The website's home page had a "banner flag in green and gold with the name and a photo of [Ponting] together with an image of a cricket ball" and called him, "Your hero, our hero".
Ponting has been mired in controversy this week after the Indian team nearly withdrew from its current tour over the banning of spinner Harbhajan Singh for allegedly calling Australia's Andrew Symonds a "monkey" and allegations of unsportsmanlike behaviour by the Australians. Mr Singh has since appealed and is free to continue playing until the appeal is heard.
Ponting is taking action under the Trade Practices Act, claiming misleading and deceptive conduct, and is seeking the cancellation of the registration of the domain name, as well as an undisclosed amount of damages.
The domain name is owned by a company whose sole shareholder and director is Victorian man Kevin Leonard.
Freehills intellectual property partner Campbell Thompson says there was no law preventing the use of other people's names on domain names, but if they claimed an untrue affiliation, it could be actionable.
"There is nothing to prevent people registering domain names, however, when they do they have to sign a contract, and under the terms of that other people can challenge the registration," Thompson says.
The common way to resolve domain name disputes is through an out of court dispute-resolution procedure, which is cheaper than court, but Thompson says celebrities usually tried to protect their names through the TPA as the effects were more immediate.
He added there were very few cases of this nature in which damages were awarded.
"There is no reason that damages could not be substantial, but you have to prove the loss, which might be hard to show is substantial. The most useful remedy in these cases is an injunction."
Using the same law, Olympic swimmer Kieren Perkins was successful in a 1997 action against Telstra for using his name and photo without his authorisation in an advertisement. He was awarded A$15,000 in damages.
A year later, Paul Hogan successfully sued shoe maker Pacific Dunlop for misleading and deceptive conduct. In a TV ad, Pacific Dunlop portrayed a character in similar clothes to those worn by Hogan in the Crocodile Dundee film and recreated a scene from the film.
Ponting's lawyers did not return calls yesterday and Leonard could not be reached.
- Australian Financial Review