Scales

The ‘Mac Poker’ Trademark Phony Baloney Tale, Part 1

(Author’s Note: The opinions expressed herein do not necessarily reflect the viewpoint of FlushDraw.net or its owners.)

Yesterday, in a lengthy news brief, FlushDraw and this author reported the story of how UK-based iBus Media Ltd., the parent company of global poker portal PokerNews, triumphed in a Nevada federal court over affiliate entrepreneur Daniel Moravec and his Best Odds Corp., regarding copyrights to the phrase “Mac Poker”.  The lawsuit by Moravec and his Best Odds Corp. targeted three prominent poker portals owned by iBus Media: PokerNews, PokerNetwork and PokerWorks, trying to force the removal of the phrase “Mac Poker” from their pages, in addition to seeking compensatory, punitive and exemplary damages, along with attorney’s fees.

scales-justiceAt issue was a trademark for “Mac Poker” obtained by Moravec and Best Odds Corp. in November of 2011 from the United States Patent and Trademark Office (USPTO), a trademark that itself has a highly suspect back history.

The impetus behind the lawsuit was an apparent, long-term attempt by Moravec to corner the affiliate market for all things related to Mac-based poker, referring to the Macintosh computer systems and its related proprietary operating system.  Indeed, the claimed “Mac Poker” trademark itself consists of nothing more than the three letters (“Mac”) comprising the official Mac® symbol, which is owned by California computing giant Apple, Inc., plus “poker,” another generic term referring to a family of card games.

How Moravec, a Minnesota native now living in Las Vegas, obtained the suspect “Mac Poker” trademark is its own convoluted story, one that also involves a separate court action involving rival affiliate Michael Jackness and his Protos Marketing, of Poker Source Online and PocketFives fame.

Back in April of 2010, Moravec filed suit against Jackness, complaining that Jackness’s MacPoker.com and MacPoker.net sites infringed upon the claimed “Mac Poker” trademark of Moravec’s.  The suit was filed on behalf of Moravec by Las Vegas copyright attorney Steven A. Gibson.

As an aside, Gibson himself is well known as the CEO of Righthaven, the infamous “copyright troll” company that in 2010 sued over 270 online sites over purported theft of content from the Las Vegas Review-Journal.  Righthaven was eventually bankrupted after the revelation of a secret agreement between the company and Stephens Media, which purportedly gave the copyrights to Righthaven for the purposes of suing others in exchange for 50% of the net proceeds.  At least two poker or online-gambling sites were among those sued.

Righthaven succeeded in extracting roughly $350,000 in legal-thuggery settlements from about 70 defendants, despite many of those defendants having used nothing more than brief excerpts from LVRJ stories, totally in compliance with fair-use standards.  Eventually, however, several legal entities joined forces to send Righthaven to the dustbin, as the company was found to have no legal standing to file the actions in the first place, and was subsequently forced into bankruptcy and receivership.

However, the Righthaven debacle wasn’t the only brush with the poker world that the infamous Gibson would prove to have.  In the same timeframe, first through his own Gibson Lowry Burris LLC firm and later through Dickinson Wright (where he became a partner), Gibson also represented Moravec in filing his suspect trademark application and later bringing the lawsuit against Jackness over the disputed MacPoker.com and MacPoker.net domains.

Moravec also sought a preliminary injunction against Jackness in an attempt to force the two online sites offline, which immediately forced Jackness to spend tens of thousands in legal fees himself to block the motion.  From that point forward the case was on, with the claimed “Mac Poker” trademark at the core of it all.

Jackness himself had a couple of vulnerable points that may have made him ripe for a legal attack from Moravec, including the fact that Jackness himself is an American citizen, who despite having his Protos/PSO empire based in Costa Rica, also owned two homes in Las Vegas and incorporated a separate Nevada company.  This allowed Moravec and Jackness to claim Nevada jurisdiction in the lawsuit.

The lawsuit was filed on April, 9, 2010, but it wasn’t until that October when Jackness took the matter public in an industry sense, opening a discussion thread on the business-oriented PokerAffiliateListings (PAL) forum, where he described the general basis of the lawsuit.  Jackness brought the matter to PAL in the hopes of raising industry opposition to Moravec’s applied-for “Mac Poker” trademark.   Most of the industry already knew that while Moravec might have been one of the earliest affiliates to try to capitalize on the burgeoning poker-for-Macs market, he certainly was not the first.

By the time Jackness took the matter to the PAL boards, Moravec’s trademark application had already been in the works for over a year, and Jackness had already filed his opposition to the trademark filing.  Moravec’s “Mac Poker” trademark application was originally filed in June of 2009, and was rejected on its first pass.  The two big problems the examiner listed were the possible confusion with and use of “Mac,” the already registered mark of Apple, and the lack of disclaimer for “poker,” itself an otherwise generic term.

In response, copyright attorney Gibson bludgeoned the USPTO examiner, John S. Yard, with a 371-page filing of exhibits of various online sites and businesses using some form of “Mac” in their own marks.  The filing included a 31-page written statement, and the examples themselves ranged far and wide and often had little relevancy — sure proof that Gibson charged by the hour.

The whole submission is best viewed as a gigantic smokescreen designed to fatigue the USPTO examiner into signing off on the application, which seems to be what more or less what happened, even though Yard insisted that a disclaimer regarding the generic nature of “poker” be attached to the mark.

All that moved forward in the same timeframe, April through June of 2010, as Moravec’s lawsuit against Jackness.  Jackness relayed via his PAL posts that he and Moravec were also negotiating in the matter, but Jackness neglected to mention to his PAL pals that he and Moravec had negotiated business deals over various Mac poker domains as far back as 2006.

As part of the lawsuit, Gibson claimed, “In September of 2006, Jackness admitted that Best owned the Mark. (Ex. 3.)”  That exhibit, obtained by this author, shows no such thing (IANAL disclaimer made), but does show that Jackness and Moravec were in negotiations, wherein Jackness and his Protos would buy Moravec’s various “Mac Poker” domains for $700,000, to be paid in three equal installments of $233,333.33.

Moravec would also have been required to sign a 1-year non-compete regarding the newly expanding Mac poker space, along with an additional 5-year non-interference clause regarding links and other parts of the business.  As Jackness wrote to Moravec in a 2006 e-mail:

— Non-Compete

In the simplest terms we do not want you optimizing sites for the terms “mac poker” “macintosh poker” or any other combination of these terms.  Of course you might create or develop other websites that have Mac compatibility, but we do not want you targeting those rooms directly.  For example, this means that we would not want you to create a site about Linux poker and then add a page specifically about “Mac Poker.”  The non-compete would be for a period of one year from the date the domain name transfers.  In addition, buying, exchanging or making press releases that purposefully bring in inbound links to mac related keywords is expressly prohibited.

Moravec didn’t like the deal, particularly when he saw his own site’s traffic spiking.  On October 10th, 2006, a Moravec e-mail to Jackness stated, “… As for Mac poker sites, they are not for sale anymore, especially for a lower price.  MacPokerOnline.com just achieved PR6 status and is averaging even more hits a day now.”

It’s from that point forward that the relationship between the pair deteriorated even further, finally resulting in the 2009 lawsuit.  Another of that suit’s allegations is that Jackness himself didn’t enter the “Mac poker” affiliate space until 2009, which Jackness himself debunked, by claiming on the PAL boards that he had done so via a site called TightPoker.com, which he once owned, and that TightPoker’s Mac-connected listings predated Moravec’s sites.  (TightPoker is known more today for its blatant and grammatically-lousy rewrites of other sites’ stories, but that’s a whole ‘nuther tale.)

The thing is, it’s all moot, if one understands two important facts: Moravec wasn’t the first affiliate in the “Mac Poker” space, and the trademark itself likely never should have been approved.  Just because something is trademarked doesn’t mean it would withstand proper legal challenges, and despite lawyer Gibson’s paperwork barrage, it’s all smoke and mirrors.

We’ll return to these aspects in Part 2.

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