Filed on behalf of (name & role of party) Stephen Fang, the Respondent Prepared by (name of person/lawyer) Stephen Fang Law firm (if applicable) Tel Fax Email

Address for service (include state and postcode)

[Form approved 01/08/2011]

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.

http://seek.estate/

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 http://www.oxfordlearnersdictionaries.com/definition/american_english/classified-advertisements

2 http://xeno.ipaustralia.gov.au/tmgns/facelets/trademarkclass.xhtml?classId=36

http://seek.estate/

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 co-

founders 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

http://biblehub.com/matthew/7-7.htmhttp://ir.seek.com.au/

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. DAU2006-

0012 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.

3

http://ir.seek.com.au/FormBuilder/_Resource/_module/NCkygw0x0kmQG8Q1PXfUNg/file/FY15_Half_Year_Results_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 http://pericles.ipaustralia.gov.au/atmoss/Falcon.Result search result seek and class 36

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

http://seek.estate/http://pericles.ipaustralia.gov.au/atmoss/Falcon.Result

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.

http://www.easy-living.com.au/

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 , ,

, and , ,

, , ,

, , ,

, . 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 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

http://www.thredbo.com.au/http://www.thredbo.com/

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

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

http://www.thredbo.com/http://www.thredbo.com.au/

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.

7

http://ir.seek.com.au/FormBuilder/_Resource/_module/NCkygw0x0kmQG8Q1PXfUNg/file/FY15_Half_Year_Results_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) Stephen Fang, the Respondent Prepared by (name of person/lawyer) Stephen Fang Law firm (if applicable) Tel Fax Email

Address for service (include state and postcode)

[Form approved 01/08/2011]