PokerStrategy.com under fire from other affiliates

Posted by Steve Ruddock on Feb 20, 2012 Posted in Legal Poker News, Poker Gossip | No Comments »

One of the largest online poker affiliates, PokerStrategy.com, has been the subject of two threads on the website PokerAffiliateListings.com (one recent, and one about a year old) where other users have alleged the massive online poker portal is using strong-arm tactics in order to secure certain domain names that use the combination of the words “Poker” and “Strategy”.

The brouhaha began in early 2011 when PokerStrategy.com’s legal department began sending Cease and Desist orders to certain websites they felt were in “piggy-backing” off of the PokerStrategy.com brand (the PAL community alleges multiple C&D’s were sent but only proof of one such letter was ever produced). After the PAL community began discussing the matter the general consensus was that PoekrStrategy.com had very little legal room to stand on in the matter, but their tactics were effective in “scaring” website owners to forfeit domains, or sell the domains to PokerStrategy.com.

In the original case it seems the website owner who received the C&D from PokerStrategy.com eventually sold the domain name to the site.

Here is a link to that thread at PokerAffiliateListings.com, and I have included the two pertinent posts at the end of this article.

The main argument, which all of the posters acknowledged was that the terms Poker + Strategy on their face are too generic to be covered under a copyright –one poster made the analogy that the registrant of Poker.com would then be able to claim the term “Poker” not be used in any domain name. Other arguments were also made concerning precisely what trademarks PokerStrategy.com has.

For over a year this small squabble seemed to be dormant after the settlement was reached, but the matter once again erupted this weekend when another PAL member, RIDGE, received a Cease and Desist from the PokerStrategy.com legal team. This time around the matter was made a bit more public, with many PAL members feeling PokerStrategy.com had overstepped its bounds and was operating somewhere between unethically and fraudulently.

Once again other members claimed to have received similar C&D orders from PokerStrategy.com, but the current debate seems to be centered on a small Internet poker forum/website operating under the name PokerStrategyGeeks.com, owned by RIDGE. The website owner claims that it’s a small poker community and is not marketing any of the products offered at PokerStrategy.com. A visit to the website showed what I would term a “developmental site” with no affiliate links. It does contain plenty of strong text which PokerStrategy.com spokesman Dominik claiming:

“This is very clearly the case, in particular when taking into account how PokerStrategyGeeks.com presents itself, namely as “Best Poker Community in 2012” (that’s odd, last time I checked, it was us who won that award?) and the “#1 Poker Strategy Resource”.

So as usual, there are two sides to every story, and in a lengthy response in the thread by the PokerStrategy.com legal team, they agreed with the community regarding precisely what any copyright of PokerStrategy would cover, but did not agree with the PokerStrategyGeeks.com owner that his site did not “willfully infringe on the PokerStrategy.com brand”.

Here is a link to the current thread, and I have also included the response from the PokerStrategy.com legal team at the end of this article.

With the overwhelming majority of posters in the two PAL threads having a competing interest with PokerStrategy.com (they are after all poker affiliates), yesterday I reached out to PokerStrategy.com for a comment on the matter. I was told to expect a response sometime today, which I will update this article with as soon as it is available.

As of now, it appears that both sides are making compelling arguments, with plenty of legalese to make the average reader’s head spin. We will keep our readers posted on any new developments in this matter.

————————————————————————–

Here is a look at the original E-Mail sent by PokerStrategy.com’s legal department, which was posted by the thread creator, JOSH, back in 2011:

To Whom It May Concern,

Swerford Holdings Ltd. is a registered company in Gibraltar and operates the website pokerstrategy.com. We have noticed that you are the registered owner of the website pokerstrategyblog.com. This address is confusingly similar to the name of our product and the website pokerstrategy.com.

You do not have any rights in the name/product of PokerStrategy.com and no legitimate interest in respect of the domain name pokerstrategyblog.com. Moreover, it seems that you might have registered the specific domain name in bad faith.

Therefore, we kindly ask you to transfer the domain to Swerford Holdings Ltd. until 31st of January 2011. If you decline the transfer, the filing of a complaint to the World Intellectual Property Organization for a decision in accordance with the Uniform Domain Name Dispute Resolution Policy will be considered.

Please respond to this letter by sending your response to law@pokerstrategy.com. If we do not hear anything from you until the end of January, your decline regarding the transfer will be assumed.

Yours sincerely,

PokerStrategy.com

E-Mail: Law@pokerstrategy.com

And here is a look at the responding message in the original 2011 thread at PAL from Dominik, a spokesman for PokerStrategy.com who posted under the title of PAL Affiliate Manager:

Hi all,

first of all, please accept my apologies if the email above seems to be intimidating.

The problem is that there are hundreds of cases of actual domain grabbing with regards to PokerStrategy. Thus, we have a representative in our legal department who regularly checks for those cases and starts of by sending a standard email (the one quoted above).

Of course, the downside of this is that some people might receive an email where the case is not as clear-cut. Domain disputes also can be a very complex matter depending on various factors. (By the way, we do own valid trademarks for PokerStrategy in most countries)

Depending on the particulars of the case, we are also willing to buy domains provided that we don’t have sufficient rights to them.

Best regards,

Dominik

And finally, here is the lengthy response in the most recent thread on the matter by the PokerStrategy.com legal team, once again posted by Dominik:

Statement on behalf of PokerStrategy.com – made WITHOUT PREJUDICE to PokerStrategy.com’s strict legal rights

First, please note that we would not normally propose to make such a public statement as this regarding our business affairs, but feel that, given the circumstances and the very public nature in which contradictory opinions have been aired, it is only right that we do so. Also, we are ourselves an affiliate and, as such, we obviously understand the sector and are able to appreciate some of the misgivings which people are so clearly having regarding PokerStrategy.com and its ethics when it comes to the protection of its intellectual assets.

Second, intellectual property law is a very specialised and complex area of legal practice (for which we are sufficiently and appropriately staffed) and we do not intend to be drawn into any lengthy debates on the relevant legal principles or the merits of any particular claims and, as such, will not be responding further in this thread. What we hope to achieve with this statement is to put forward, in very simple terms, our own view on the topics under discussion – it is by no means a comprehensive summary of our position, or the position at law.

The “POKERSTRATEGY” trade mark

PokerStrategy.com enjoys REGISTERED trade mark rights in the mark “POKERSTRATEGY” (both the word, as represented, and as depicted in graphical form) in over 40 territories worldwide and has numerous other applications pending approval. For a number of years we have offered and provided our services under the moniker of “PokerStrategy.com”, we have invested millions of dollars in the promotion and protection of this brand and in growing its reputation and goodwill to the point where we provide our services in 19 different languages and are the world’s largest and most popular poker site and community with circa 6 million registered members.

That is not to say that PokerStrategy.com lays claim to the words “poker” and “strategy” in their entirety and that we would, in any way, suggest that third parties are not free to use these words in their plain English-language context – a view which we would imagine the owners of other very strong (but “generic”) brands such as Apple, Amazon, BlackBerry and Orange would share. It does mean, very generally speaking, that PokerStrategy.com enjoys the exclusive right and entitlement to use “POKERSTRATEGY” in a trade mark context, in relation to those goods and services in respect of which the mark is registered, in numerous territories across the world – this is without even taking into account PokerStrategy.com’s considerable unregistered rights in the mark, which we do not feel the need to address in any further detail for the purposes of this statement.

PokerStrategyGeeks.com

Again, while we would not usually rehearse our legal claims and arguments in such a public forum, we feel it is important to provide some additional colour to the facts of this matter to demonstrate that the domain name in question has been carefully identified as wilfully infringing our valuable intellectual property rights and that the registrant is not the victim of an indiscriminate campaign by PokerStrategy.com to seize domain names which we, actually, would not wish to have the costs of maintaining in our portfolio.

1. PokerStrategyGeeks.com is the website of a venture that purports to operate under the brand name of “Poker Strategy Geeks” in providing online poker education, coaching, hand analysis, a poker community/forum, industry news etc. – all important elements of the PokerStrategy.com offering and services that are covered by our various trade mark registrations. The addition of the word Geeks to this mark is irrelevant;

2. PokerStrategyGeeks.com bills itself, without substantiation, as both the “Best Poker Community in 2012” and the “#1 Poker Strategy Resource” – this could cause confusion amongst the public at large who might expect such claims to be associated with a bona fide PokerStrategy.com offering, given our enviable position within the market place and the numerous industry awards we have been fortunate enough to receive over the years;

3. PokerStrategyGeeks.com is stated here as being solely for the benefit of the registrant and 30 “close friends” – however, the website has a corresponding Facebook page with nearly 500 “likes” and its forum has over 200 registered members, which is either indicative of the registrant wilfully misrepresenting the situation, or is prima facie evidence of confusion amongst the public at large as to the provenance of the PokerStrategyGeeks.com website (i.e. individuals registering or associating themselves with PokerStrategyGeeks.com as they have assumed some affiliation with PokerStrategy.com); and

4. The registrant has publicly acknowledged that he is aware of PokerStrategy.com, its offering and the length of time it has been promoting its services under the POKERSTRATEGY mark and has, despite being in full possession of these facts, elected to establish a competing offering under a confusingly similar mark.

It is for these, and other, reasons that we have taken the view that the registrant of PokerStrategyGeeks.com is doing more than simply referring to “poker strategy” in a good faith, English-language context and is, in fact, attempting to establish his own competing undertaking by providing identical, or confusingly similar, services to the public at large via a trade mark and associated domain name which is also confusingly similar to our own, thus seeking to unlawfully benefit from the goodwill and reputation already established in the POKERSTRATEGY mark. This is a clear abuse of our intellectual property rights and, as such, will not be tolerated. PokerStrategy.com is well within its rights to pursue infringing activity of this kind and will continue to do so as it seeks to protect its valuable assets from those third parties who would attempt to benefit from the same – unfortunately, there are many.

Damon Barnard

Head of Legal

Legal Affairs

PokerStrategy.com

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