The ‘Mac Poker’ Trademark Phony Baloney Tale, Part 2
(Author’s Note: The opinions expressed herein do not necessarily reflect the viewpoint of FlushDraw.net or its owners.)
Welcome back to more of the curious saga of the ongoing affiliate ballet over the phrase “Mac Poker,” which returned to the news this week courtesy of a Nevada court decision last week that tossed out a lawsuit brought by Daniel Moravec and his Las Vegas-based Best Odds Corp.
As this author began to recount in Part 1, the claims of Moravec are based on his highly suspect trademarking of the phrase “Mac Poker.” Moravec’s lawsuit against PokerNews parent iBus Media wasn’t his first attempt to use the court system to clear away online competition; he also filed against Protos Marketing (Poker Source Online, etc.) honcho Michael Jackness with similar claims.
Jackness spent at least $75,000 defending himself against Moravec’s claims, which were put forward in a lawsuit brought by the infamous Righthaven CEO and copyright attorney, Steven A. Gibson, on Moravec’s behalf.
Eventually, and in circumstances never specifically explained by any of the litigants, the two parties reached a settlement wherein Moravec dropped his lawsuit, and Jackness subsequently transferred two valuable “Mac Poker” domains, MacPoker.com and MacPoker.net, to Moravec’s Best Odds Corp, in addition to dropping a protest regarding Moravec’s trademark application.
Whether any cash flowed from one to the other of the litigants remains unknown, though both affiliates, with Nevada ties, probably had significant reasons for not wanting the case to go to trial in a post-Black Friday US court — particularly in Nevada, where the state was in the process of legalizing its own form of online poker. For his part, Jackness later relayed via a PokerAffiliateListings thread he had started in connection with the lawsuit that he’d been fatigued by the expenses and time involved, and only the lawyers were winning.
Nonetheless, it’s hard to imagine that Jackness and his Protos Marketing wouldn’t have prevailed had they gutted it out, despite the costs involved. In the lawsuit, Moravec and attorney claimed that “Mac Poker” was his trademark, even though it was only applied for at the time lawsuit was applied for and wasn’t approved — under questionable circumstances — several months later.
Moravec’s “Mac Poker” trademark claim had several serious problems, none of which have been resolved in the actions to date, the undisclosed settlement with Jackness or the failed suit against PokerNews. Moravec’s issued “Mac Poker” trademark, US Reg. No. 4,047,372 remains ripe for wielding against other affiliates, vendors, even online sites themselves who might wish to offer a Mac-based poker product.
It’s all bogus.
United States trademark law grants a mark to the “first to use” a given mark, not the “first to file,” and that’s with several other conditions also needing to be meet. Yet it appears that Moravec wasn’t the first to use “Mac Poker” in internet commerce.
In his lawsuit against Jackness, Moravec asserted that he bought the macpokeronline.com domain on or about June 3, 2005, and put his claimed mark into service on that date. However, launching MacPokerOnline.com doesn’t mean that Moravec automatically accrued a trademark right to the phrase “Mac Poker,” and he didn’t even get around to filing his trademark application until four years later.
But even before 2005, affiliates and other businesses explored commerce relating to Mac-based poker. A snapshot to one of those emerged in the PAL thread, an image of a site called AppleCasinos.com that talked about “Mac poker” way back in February of 2004. As linked via PAL, the old site clearly mentioned “Mac poker” in a commercial sense long before Moravec got around to it:
Was the site’s owner doing business in the US? The domain registration remains hidden, but scattered around the same website in those days were signup links to online sites clearly open to US customers, such as PokerRoom.com. That means that the “Mac Poker” phrase was being used for some level of e-commerce long before Moravec’s claimed starting date, and Moravec never had a right to the US trademark for “Mac poker” in the first place.
The above also clearly invalidates the base argument brought by Moravec and Gibson in the lawsuit against PokerNews parent iBus Media. Moravec in large part claimed that the Nevada court had jurisdiction because the site was accessible to Nevadans. But that would have applied to AppleCasinos.com and many other sites as well.
Perhaps the largest giveaway that Moravec’s trademark claim for “Mac Poker” is illegitimate resides in the history of the disputed domains themselves. The lawsuit Moravec filed against Jackness talks all about the use of the mark on Moravec’s macpokeronline.com site, but why didn’t he have macpoker.com or macpoker.net if he was really the first to use the claimed mark?
The answer, of course, is that he couldn’t: Those domains were already taken.
The following image, courtesy of HosterStats.com, shows that someone (presumably Moravec) indeed registered macpokeronline.com around the start of May, 2005:
But what about the domains obtained by Jackness, macpoker.com and macpoker.net?
Macpoker.com dates all the way back to 2000, though it lapsed and was re-purchased in 2003. Here’s the trail:
Macpoker.net doesn’t go back quite as far, but it still easily predates Moravec’s macpokeronline.com site:
Daniel Moravec simply had no “first to use” rights. Further, the phrase “Mac poker” probably shouldn’t be allowed to be trademarked at all, unless by Apple, Inc. The above doesn’t show whether Jackness or someone else was the original owner of the macpoker.com domain, and it also wouldn’t show whether “Mac poker” was in use as a phrase elsewhere, on other sites.
What it does show is that Moravec was late to the party, despite his lawsuits’ claims.
There’s much more than the above to show that the “Mac poker” trademark appears to be spurious. Among them are the long-winded legal ruse employed by attorney Gibson in an effort to claim that the phrase “Mac poker” somehow meant something far more than poker-related interests as they connect with Macintosh computers and operating systems.
Gibson even went so far as to create this description within the formal trademark application: “Providing news and information via a global computer network in the field of gaming, namely, online gaming websites, gaming strategy, gaming software, gaming rules, online gaming affiliate programs, gaming television show schedules, gaming tournament schedules.”
Get it? No mention of poker, despite the applied-for mark being “Mac poker.” Then, when the examiner initially declined the request because of its obvious poker connotations, Gibson launched a legal diatribe as part of a 31-page statement that the examiner had erred in including poker as part of its evaluation, despite the word’s presence as part of the mark.
Here’s a fine example of Gibson’s legal crapstorm:
The Examining Attorney’s recharacterization of Applicant’s scope of use as “a website providing online information in the field of gaming and poker” is thus inappropriate. Nowhere in the Application Scope of Use does Applicant limit any portion of Applicant’s described services as pertaining specifically or solely to poker. The services described in the Application Scope of Use are, however, limited to particular topic areas in the broader topic field of gaming, specifically, “online gaming websites, gaming strategy, gaming software, gaming rules, online gaming affiliate programs, gaming television show schedules, [and] gaming tournament schedules.”
In a word, bullshit.
Regardless of what the description stated as filed, Moravec has wielded “Mac poker” as a tool to try to capture Mac poker traffic, and while some of the content might also fit under those larger and more general descriptors, the battle here was about “Mac” and “poker” and nothing else. That fits not only to the legal maneuvers wielded against both Jackness and iBus Media, but also, as one will see, to Moravec’s planned marketing strategies.
Check out the following list of 152 internet domains presently registered to Moravec’s Best Odds Corp., and notice how often “Mac” and “poker” appear, along with other gaming-market keywords:
slotmacintosh.com apple-casino.com casinosmac.net backgammonmac.com blackjackformac.org
us-poker.net poker-us.net macpokertracker.com pokerstarmac.com us-poker.biz
maccasinoonline.com pokerstarsforandroid.com mac-poker-guide.com blackjackmac.net
macslot.net slotsformac.org gambling-mac.com pokerforumsonline.com macpokersite.com
mac-gambling.com onlinecasinomac.net crapsmac.net slotmac.org pokerstarsmac.com
internetbadugi.com casinoformac.com crapsmac.com maccasino.us bingomac.org playbadugionline.com
badugionline.net macpokerstar.org pokerin.us us-poker.us macgammon.net pokerus.biz
casinogamesmac.com backgammon-mac.com uspokersearch.com casinosmacintosh.com slotmac.net
poker-us.us macpartypoker.org casinoformac.org macpartypoker.com onlinegamblingmac.com
casinomacs.com gamblingthemes.com macpokerstar.com tiltpartners.com casinoformac.net
poker-us.org macsportsbook.org macpkr.com casinosformac.net highstakesreports.com
holdempokermac.com poker-macs.com onlinebadugi.com pokerinus.org bingoformac.org
macgammon.org gammonmac.net macpoker.biz pokerinus.biz bingo-mac.com videopokermac.net
poker-us.biz macgambling.net pokermac.us gamblingmac.net pokerforandroid.com casinosmac.com
macbackgammon.net bestoddscorp.com gamblingmac.com videopokermac.com onlinepokermac.com
slotsformac.net casinomacs.net macbackgammon.org pokerroommac.com blackjack-mac.com
macpokerstars.net pokermac.net macgambling.org roulettemac.org pokerinus.net bingomac.net
gamblingformac.com macpoker.com badugistrategy.net pokerforiphone.com casino-iphone.com
holdemmac.net crapsmac.org gammonmac.org mac-backgammon.com bingoformac.net
macpokeronline.org pokerstarsmac.org pokermac.biz macpokernetwork.com kenomac.com
gamblingmac.org badugistrategy.com partypokermac.net pokermacs.net macsportsbook.net
pokerinus.us macpokeronline.net pokerstarmac.net blackjackmac.org videopokermac.org
macpokerstars.org highstakes-poker.com gammonmac.com slotsmac.com kenomac.org badugionline.org
maconlinegambling.com pokerstarmac.org casinous.org slotsmacintosh.com maccasinosoftware.com
casino-mac.net pokerus.us onlinebadugi.org macpoquer.com holdemmac.com casinoformacs.com
macpoker.us partypokermac.org macslot.org casinosformac.org bingoformac.com badugistrategy.org
tiltaffiliates.com holdemmac.org macpartypoker.net macpoker.net kenomac.net holdemhumor.com
hustlecards.com duluthpoker.com onlinepokermac.net roulettemac.net backgammonmac.net
pokerstarsmac.net backgammonmac.org casinomac.org pokerforiphone.org
That’s quite a list, to say the least, and if there’s some possible domain-squatting or misappropriation of other’s marks within all those names isn’t for this writer to say. What is clear is that this is a definite marketing and business strategy, designed to dominate internet-portal listings for “Mac” and “poker.” To the extent that Moravec has obtained what appears to be an invalid trademark in his pursuit of market dominance is all part of the same game.