Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/57

 networks in Australia, and it knew it had approximately 2.2 million subscribers in Australia. It intended to make representations to each Australian consumer who downloaded Steam Client.

181 The website representations are less simple. Considered by themselves, they were general representations to the world at large. They are not representations to any person or to any Australian consumer. Until the representations were accessed, the representations were meaningless and could not be the subject of any alleged contravening conduct. But, by the time a consumer had purchased a game or downloaded Steam Client the consumer had a relationship with Valve and representations were made in Australia. The purchase of a game also required a consumer to click on a box that agreed to the terms of the SSA. The consumer provided Valve with his or her location as Australia at the time of purchase. Indeed, Valve priced some games differently in Australia (ts 120–121). The consumer might be told by Valve that "This item is currently unavailable in your region" (Court Book 347).

182 For these reasons I conclude that each of the classes of representation involved conduct in Australia. However, for completeness, I explain below two further decisions upon which the parties made substantial submissions.

183 The first of these decisions is the decision of Merkel J in Ward Group Pty Ltd v Brodie & Stone plc [2005] FCA 471; (2005) 143 FCR 479. In that case, the applicant had registered Australian trade marks which it alleged had been infringed by the advertising and sale of products on the internet by the respondents. The advertising targeted potential purchasers anywhere in the world. And apart from "trap purchases" by the applicant's solicitors there was no evidence of any purchases in Australia. Justice Merkel considered claims for passing off and for trade mark infringement. This decision can be distinguished on the basis that it was concerned with the characterisation of different conduct for the purposes of a different statute with different underlying norms. But, in any event, in relation to his conclusion, the approach taken by the primary judge is consistent with the reasoning I have set out above.

184 Senior counsel for Valve referred only to the claims for trade mark infringement in Ward Group. But, in relation to the claim for passing off, the primary judge said that although no representations were made in Australia because the website did not target Australian consumers and no innocent consumer had made a purchase (at 488 [33]), the "trap purchasers" who did make purchases were persons to whom the representations were specifically directed once they had read the website. His Honour said (at 488 [34]):