Scales

Poker Affiliate Dealt Legal Defeat in ‘Mac Poker’ Case

Online poker portal PokerNews has triumphed over Nevada-based poker affiliate Best Odds Corp. in a legal battle over the use of the phrase “Mac Poker” in connection with sites offering online-poker for Macintosh computer users.  The decision, a dismissal issued last Wednesday, represents a blow to the efforts of overzealous trademark purchasers who attempt wield global control over market-friendly phrasings in an attempt to corner an illicit online marketing monopoly.

scales-justiceBest Odds Corp., run by Nevada-based online-poker affiliate Daniel Moravec, had sued PokerNews parent entity iBus Media Ltd. over its use of the phrase “Mac Poker” on various online sites (primarily PokerNews.com) and pages and in marketing materials.

Moravec had previously succeeded in getting a US trademark for the phrase “Mac Poker,” and wielded that via a Nevada patent attorney to drag the UK-based iBusMedia into US court.  Moravec and his Best Odds Corp. run numerous online-poker and other affiliate sites, including macpokeronline.com, macpoker.com (itself the subject of a related case), pokeronamac.com, bestoddscorp.com, macpokersite.com, and about 150 others.

It’s not the first legal dance for Moravec and his highly questionable “Mac Poker” trademark, and we’ll explore the history of his trademark claims and battles in a followup story.

In the PokerNews lawsuit, however, Moravec asserted that even though PokerNews is a global company, not based in the US, the fact that PokerNews purportedly targeted its poker coverage to a US audience meant that the site was therefore subject to “general jurisdiction” (meaning Nevada) as well as “personal jurisdiction”, and that Moravec’s trademark claim should be judged in effect against PokerNews.

The presiding judge in the case, Robert C. Jones, ruled otherwise, granting iBus Media’s motion to dismiss, and noting that Moravec’s and Best Odds Corp’s own exhibits failed to prove the case as stated.

The claim was based on an antiquated 1946 US trademark law called the Lanham Act, which has become increasingly unworkable in the modern age of global commerce and e-communications, and which has become a lightning rod of sorts in the field of trademark litigation.  A press release issued yesterday on behalf of prominent gaming attorney A. Jeff Ifrah, who defended iBus Media in the case, celebrated the decision by Jones as a defeat for heavy-handed and ill-applied trademark enforcement tactics, without even bringing up the issue of whether the “Mac Poker” trademark as obtained by Moravec in 2009 is itself legally defensible.

“This dismissal is one of the first cases we’ve seen where the Supreme Court’s Daimler ruling has begun to set a new precedent,” said Ifrah. “This ruling will make it much more difficult for plaintiffs to sue internet companies based on general jurisdiction.”

Ifrah’s referral to the important trademark case of Daimler AG v. Bauman, which Judge Jones referred to himself in tossing Moravec’s lawsuit.  Wrote Jones, “The Supreme Court recently clarified that the reach of general jurisdiction is narrower than had been supposed in the lower courts for many years, … noting that general jurisdiction lies not simply where a defendant has continuous and systematic contacts with the forum state, but where those contacts are so pervasive as to render the defendant “essentially at home” in the forum State).”

Despite PokerNews posting live reporters at several Nevada-based poker tournaments and series, including the ongoing World Series of Poker — a fact introduced by Moravec and his attorney, Steven A. Gibson of Las-Vegas based Dickinson Wright PLLC, Judge Jones found that the UK-based PokerNews was not “at home” in Nevada, despite the fact that Nevada residents could certainly access the site’s content.  Judge Jones also found that PN did not commit any form of tortuous interference simply by creating an English-language site with links to “Mac Poker”-accessible sites, simply because Nevadans might read them; some of the very links submitted by Moravec and his lawyer as evidence carried the disclaimer, “Not accepting US players.”

A supporting attorney in Ifraw’s firm, Robert Hirsch, wrote, “The court basically took the plaintiff’s exhibits and turned them against them.  The plaintiff essentially argued that as a global website, defendants would naturally do some business in the United States, and that should be enough for the Ninth Circuit to have jurisdiction. But using the Daimler ruling, the court said that’s not enough.”  Added Hirsch, “The district court’s narrowing of general jurisdiction will likely be a boon to foreign-based corporations.  Foreign defendants aren’t going to be hauled into U.S. courts so easily.  It’s going to be much harder for plaintiffs to prove that a foreign company is ‘essentially at home’ in the U.S.”

FlushDraw will return to the “Mac Poker” legal saga in the near future.

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