Bodog Loses Another Round Of Patent Poker

from the try,-try-again? dept

You may remember last year that the popular online poker site Bodog.com was forced to change its name after losing a patent battle in Nevada, where the judge seized Bodog's domain name. The whole thing was pretty questionable. First of all, the patent itself is incredibly broad and could be used against any number of online sites. Secondly, why would a judge order that a company's domain name be taken in a patent dispute? The domain itself has nothing to do with the infringement. Of course, the ruling itself was mostly based on it being a default judgment: no one from Bodog showed up, pointing out that the site was not based in the US at all.

However, after losing, the folks at Bodog did file an appeal, arguing that it wasn't properly served and that it, as a Costa Rican company, is outside the jurisdiction of a Nevada court. The appeals court apparently disagrees and has affirmed the lower court's decision without issuing any opinion. The ruling still makes very little sense, but that's what happens when you don't show up in court when sued, unfortunately.


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  1.  
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    Anonymous Coward, Oct 10th, 2008 @ 1:05am

    That's great, one more chance to rub folks' noses in the U.S. internet hegemony by yanking away a TLD from a company outside of U.S. jurisdiction. Just what we need.

     

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  2.  
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    Matt Bennett, Oct 10th, 2008 @ 6:20am

    Ok......but why DOES the US have jurisdiction? International Patent treaties? Because the domain servers are in the US? Generally speaking, if someone informed me I was being sued for being a doodoo face in Costa Rica, I might very well not show up, either.

     

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  3.  
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    Willton, Oct 10th, 2008 @ 7:53am

    Taking the Domain Name

    The reason the court issued the attachment of the domain name was because Bodog was not paying the damage award. Typically, when a defendant does not pay his damage award, the plaintiff can ask the court to freeze the defendant's assets or issue a sale thereof, where the proceeds go towards paying off the damage award. In this instance, the court viewed the domain name as having value that would give the plaintiff an opportunity to collect on his damage award, or at least encourage Calvin Ayre to pay up.

     

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  4.  
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    Willton, Oct 10th, 2008 @ 8:20am

    Re:

    Ok......but why DOES the US have jurisdiction? International Patent treaties? Because the domain servers are in the US? Generally speaking, if someone informed me I was being sued for being a doodoo face in Costa Rica, I might very well not show up, either.
    The U.S. has jurisdiction because Bodog is purposely availing itself of the privileges and protections of the laws of the United States. The Supreme Court has said that "the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state." World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 297-298 (1980). While Bodog may be based in a country outside of the U.S., it is making money from U.S. citizens by injecting its product in the United States. Bodog's advertising of its product on the radiowaves further evidences an intent to serve the U.S. market, and that would qualify as a substantial connection between Bodog and the United States worthy of exercising U.S. jurisdiction thereover. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1988). I would find it very hard to believe that a U.S. federal court did not have jurisdiction over Bodog and its gambling services.

     

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  5.  
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    Willton, Oct 10th, 2008 @ 8:24am

    Re:

    Please disregard the above comment. Poor formatting on my part.

    Ok......but why DOES the US have jurisdiction? International Patent treaties? Because the domain servers are in the US? Generally speaking, if someone informed me I was being sued for being a doodoo face in Costa Rica, I might very well not show up, either.

    The U.S. has jurisdiction because Bodog is purposely availing itself of the privileges and protections of the laws of the United States. The Supreme Court has said that "the forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state." World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 297-298 (1980). While Bodog may be based in a country outside of the U.S., it is making money from U.S. citizens by injecting its product in the United States. Bodog's advertising of its product on the radiowaves further evidences an intent to serve the U.S. market, and that would qualify as a substantial connection between Bodog and the United States worthy of exercising U.S. jurisdiction thereover. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1988). I would find it very hard to believe that a U.S. federal court did not have jurisdiction over Bodog and its gambling services.

     

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  6.  
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    Willton, Oct 10th, 2008 @ 8:34am

    One more thing

    The ruling still makes very little sense, but that's what happens when you don't show up in court when sued, unfortunately.

    No, that's what happens when you thumb your nose at the U.S. legal system and refuse to defend yourself in court. If Ayre didn't think the Nevada court had jurisdiction over him and Bodog, then he should have made a motion to dismiss the suit for lack of personal jurisdiction. His failure to do so shows his arrogance and his stupidity.

     

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  7.  
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    Dosquatch, Oct 10th, 2008 @ 8:56am

    What about the other way

    So when the Imperial Court of Snozzlewick decides to attach the asset "Google.com" because the search engine returns an article unfavorable to the Snozzlewick Royal Family, that's cool, too?

     

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  8.  
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    Willton, Oct 10th, 2008 @ 9:55am

    Re: What about the other way

    So when the Imperial Court of Snozzlewick decides to attach the asset "Google.com" because the search engine returns an article unfavorable to the Snozzlewick Royal Family, that's cool, too?

    If the asset is based in Snozzlewick, then yes. However, that does not affect a U.S. resident's ability to access Google, as a U.S. resident's access is not dependent upon the laws of Snozzlewick.

    Further, if Snozzlewick's laws are so draconian, then Google does not have to avail itself of their laws and can avoid reaching that market altogether if it so chooses. Bodog could have done the same thing with regard to the U.S. If Bodog does not like having to deal with U.S. law, then it does not have to market its product to U.S. citizens on U.S. soil and just avoid that market altogether.

    However, because Bodog is marketing its product in the U.S., and receiving a substantial profit therefrom, it is enjoying the privileges and protections of the laws of the United States and, therefore, should be subject to the jurisdiction of the United States.

     

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  9.  
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    Jaded Lawyer, Oct 10th, 2008 @ 10:34am

    You don't pay...you lose your assets

    I'm somewhat suprised that Techdirt doesn't understand how the domain could be siezed. If you don't pay a judgement (levied against you in part for not showing up), the plaintiff (with the courts backing) will go after your assets. Plaintiffs sieze domain names all the time to satisfy outstanding judgements. The plaintiffs will likely go after the tradewarmks as well. Law School 101 here folks...

     

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  10.  
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    Dosquatch, Oct 10th, 2008 @ 12:19pm

    Re: Re: What about the other way

    However, that does not affect a U.S. resident's ability to access Google, as a U.S. resident's access is not dependent upon the laws of Snozzlewick.

    On their laws, no, but on the domain name. If by local action Snozzlewick removes "Google the company" and "Google the domain" from one another, that is a global effect and most certainly does affect me, US citizen or no.

    If the asset is based in Snozzlewick, then yes.

    But Bodog is NOT based in the US.

    Further, if Snozzlewick's laws are so draconian, then Google does not have to avail itself of their laws and can avoid reaching that market altogether if it so chooses.

    Indeed, and that option exists on both ends. Snozzlewick can also block entry.

    So if Nevada chooses to make a decision on a local level, I have no problem with it having a local effect. Let them configure their routers such that Bodog cannot be accessed. But when local jurisdictions begin seizing foreign property, I feel they have overstepped their bounds.

     

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  11.  
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    Dosquatch, Oct 10th, 2008 @ 12:25pm

    Re: You don't pay...you lose your assets

    Assuming both parties are subject to the same jurisdictions and laws, certainly. But I would certainly find it repugnant were I to be tried and convicted in a foreign land, have the foreign court issue an attachment on my property here, and then have an entity HERE actually enforce that.

     

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  12.  
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    Willton, Oct 10th, 2008 @ 2:56pm

    Re: Re: Re: What about the other way

    On their laws, no, but on the domain name. If by local action Snozzlewick removes "Google the company" and "Google the domain" from one another, that is a global effect and most certainly does affect me, US citizen or no.

    Well, then perhaps that's why Google does not have its domain name registered in Snozzlewick. Google's domain name is no more an asset of Snozzlewick than it is an asset of China; it's an asset of the United States.

    But Bodog is NOT based in the US.

    But some of its assets are, including its domain name and trademark registrations.

    So if Nevada chooses to make a decision on a local level, I have no problem with it having a local effect. Let them configure their routers such that Bodog cannot be accessed. But when local jurisdictions begin seizing foreign property, I feel they have overstepped their bounds.

    The domain name is not foreign property; it's property existing and registered the United States. That's why the court could attach it.

    And this is not a local jurisdiction - this is a federal district court. It is the United States federal government that is seizing this property, not the state of Nevada.

    It follows a basic principle of fairness: Bodog should not be able to do business in the United States and escape the purview of United States laws merely because it resides in a different country.

     

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