BODOG PATENT CASE GETS TECHNICAL

30 November 2007

Online gambling group requests ruling on status of domains


The ongoing and acrimonious patent and domains dispute between 1st Technologies and Bodog Entertainment Group SA took a new direction last week with a novel motion filed by the Bodog legal team.

The motion, filed on November 13 in the same court which ordered the confiscation of Bodog domains in a $47 million default judgement that is still being contested, asks the court to answer a question which has not yet been answered in Washington law:

"Are Internet domain names considered "property" that can be subject to seizure to collect on a judgment?"

For Bodog Entertainment Group, S.A., the answer is a resounding "No," says a statement from the company, which is waiting for a decision, this week.

Specifically, Bodog Entertainment Group have asked the Washington court reconsider its prior ruling granting a writ of execution which permitted 1st Technology LLC to seize thousands of Internet domain names, including domain names that incorporated Bodog trademarks.

Through its lawyers, Bodog Entertainment Group, S.A. points out that there is no previously established case law in the state of Washington which specifically permits Internet domain names to be seized or finds that domain names are "property" that can be seized under Washington law.

Defense team lawyer James Nguyen, an entertainment, intellectual property and Internet law specialist at Foley & Lardner LLP, explained: "This is a new legal issue triggered by the emergence of Internet technology."

Because there are no current legal decisions in Washington about this important point, the defending legal team is asking the Washington judge to look to established law in the state of Virginia, which holds that domain names should not be subject to seizure.

The state of Virginia is an appropriate jurisdiction for legal reference, because the second largest domain name registrar in North America, Network Solutions, is located in Virginia. Virginia courts thus have considerable experience with Internet domain name legal issues.

Furthermore, Nguyen points out that "in a number of jurisdictions, trademarks are not considered assets that are subject to seizure."

Bodog Entertainment Group, S.A.'s legal team therefore argues that domain names which incorporate the Bodog and related trademarks cannot be transferred, because those domain names could not be used by a third party (such as anyone who might purchase the domain name through an Internet auction) without infringing on Bodog trademarks.

As Bodog Entertainment Group, S.A.'s motion argues that if a court does not have the power to permit seizure of trademarks, it likewise should not have the power to seize or transfer domain names which contain those trademarks.

"This is a groundbreaking case in the muddy waters of Internet law, and we are confident that we have many aspects in our favor to [get] some clarity on this issue and have our domains returned to us," said Bodog Founder Calvin Ayre.

The motion was filed on Nov. 13 in the case 1st Technology, LLC v. Bodog Entertainment Group, S.A., Superior Court for State of Washington, County of King, Case No. 07-2-25305-0 SEA, and is currently under consideration before the Honorable John Erlick.

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