Two companies are in the process of seeking legal advice after Melbourne-based Cybersource boss Con Zymaris discovered a UK-registered company was marketing a product using his company's name.
Zymaris made the discovery last week after reading about CyberSource International's plans to sell their Internet payment gateway in Australia in ARN Daily (October 13).
"We, Cybersource Pty Ltd, aren't connected in any way with this US company. They just happened to use our name, four years after we incorporated it. Also, as far as I know, they will not be able to use that name [in Australia] as we are already trading under it and have been for eight years," Zymaris said.
Zymaris expressed concern that there was potential for confusion, as both are IT companies. His company provides Unix, Linux, and Windows Systems Administration and rapid application development services, whereas CyberSource International offers a secure payment gateway for Internet merchants worldwide.
It seems the potential legal stoush raises questions for all businesses trading via the Internet. According to intellectual property lawyer Peter Knight at law firm Clayton Utz, the question is: "If a business has a server for its Web site in country A and that site is accessible from countries B, C, and D, does it mean the business has use of its trademark in all those countries?
"Who ever has concurrent or prior use of the name will prevail against anything."
If the local company can prove they thought up the name there's a pretty good chance they'll win, he predicted.
Domain name registry company Net Registry director, Richard Block, said, in his opinion, the issue over trading names touches domain registration rules and trademark laws and, he thought the ACCC might also have an interest.
"As for what happens now, we'll wait and see," Zymaris said. "It all depends on what name they use overseas and what name they intend to trade under here. But yes, we'll fight for the name as people know us by that name."
CyberSource's international business development manager for Asia-Pacific, Peter Burgess, was surprised when ARN informed him about the Melbourne company. "We trade under the name CyberSource International in the UK and CyberSource Corporation in the US and have done so since the mid 90s," Burgess said.
"I have e-mailed our corporate attorney in the US and asked for immediate clarification and instruction on this issue. It has to be resolved because we consider Australia a strategic platform to reach the Asia-Pacific region. "I have scaled down market activities while we sort this out."
Burgess later received an e-mail stating that CyberSource International is attempting to register a trademark in Australia but an Australian company is blocking the application.
Both Burgess and Zymaris were open to all possibilities to settle the problem with Burgess not confirming or denying his company might try to buy the Australian rights.