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What’s in a name, asks Bodog founder Calvin Ayre
Is a seized domain worth the paper it’s written on?
The strange and underreported case of 1st Technology v. Bodog continued its legal sojourn this week with another response by 1st Technology to the gambling giant's continued claims of ownership to its one-time domains, such as Bodog.com.
The case, in which 1st Technology has managed to wrest at least temporary control over internet domains previously owned and operated by Bodog, has drawn little attention from outside the gambling industry, even though the litigation involves thorny and unsettled issues of trademark law.
The case began simply enough in Nevada last year, with an assertion of patent infringement against the Antigua-based company by software developer 1st Technology, which claimed that Bodog had violated US patent number 5,564,001, entitled Method for Interactively Transmitting Multimedia Information Over a Network which Requires a Reduced Bandwidth.
Although 1st Technology allegedly produced a licensing agreement with Bodog, the claim was utterly ignored by the press – who cares about another patent troll? – and dismissed by Bodog, either out of concerns that defending the lawsuit would lead to possible arrests by American authorities on outstanding silent warrants, or on the mistaken belief that Bodog had no American assets, and was for all intents and purposes judgment-proof.
Either way, Bodog representatives never appeared in court to defend the company, and a default judgment of $46.5m was entered against it in late February.
Judgment-proof, you say?
Armed with its default judgment against Bodog, 1st Technology then filed a writ of execution in the state of Washington to enforce it.
Why Washington? Washington is the headquarters of domain registrar Enom, which just happened to be the registrar for Bodog.com, Bodogcasino.com and a number of other related websites owned and operated by Bodog – the only identifiable American assets of this longtime Department of Justice nemesis.
Bodog owner Calvin Ayre has thumbed his nose at American authorities for years, carefully sequestering assets beyond the reach of the United States government and happily avoiding jurisdictions that might extradite him to the United States, but his websites were still registered with an American registrar.
The Internet Corporation for the Assignment of Names and Numbers (ICANN), a nonprofit regulatory body that sets internet technical standards and oversees registries and registrars, has considerable authority in determining the policies that govern internet domains, and has long maintained that internet domains are leased, rather than actually owned. At the same time, ICANN generally goes out of its way to protect intellectual property rights holders.
The idea, however, that a domain is nothing more than a periodic tenancy in cyberspace has troubling implications for trademark holders, whose rights in the physical world are maintained by registration and use – rights that have none of the explicit time limits that saddle copyright holders, and in theory can exist in perpetuity.
Nobody re-registers a trademark every two years. Intellectual property holders are thus in an endless race to register domains in the ever-expanding cyber-sphere of new Top Level Domains (TLDs), such as .asia or .cat, before the squatters move in.