10/23/09 – In an interesting parallel story to the Kentucky hearings, LexisNexis Butterworths reported on a legal preemptive strike through its domain name registrar but clearly aimed at the state of Kentucky…before a British court!
Full Tilt Poker owners Pocket Kings Limited took issue with the English domain registrar Safenames Limited and another in case EWCH 2529 before British justice Mr. Michael Furness QC, sitting as a deputy judge of the British High Court.
Reporting on the case, the ipkitten blog observed that Safenames was contractually responsible for pointing the fulltiltpoker.com domain name towards Pocket Kings' domain name servers. The report goes on to describe the events surrounding the Kentucky attempt to seize domain names in 2008, noting that one of the registrars ordered by the lower court Kentucky judge to surrender client domain names was Safenames.
Pocket Kings sought an undertaking from Safenames that it would not do any act that interfered with the use and enjoyment of its domain name. When Safenames failed to give such an assurance, Pocket Kings sued both Safenames and Kentucky and applied for a declaration that the court would neither recognise nor enforce the orders in the Kentucky proceedings for the seizure or forfeiture of the domain name.
The State of Kentucky failed to acknowledge service and Pocket Kings applied for summary judgment. Safenames said it was willing to submit to judgment on agreed terms, so long as Pocket Kings obtained judgment in default against Kentucky.
Lawyers for Pocket Kings argued that the jurisdiction of the state of Kentucky exercised through a domain seizure order on an English registrar would be improper in that it constituted the imposition of the criminal and public law of a foreign state on a British company.
Long story short, the judgement went in favour of Pocket Kings, placing the company in a strong position in the event of future domain attacks.
Justice Furness accepted that the action was a pre-emptive measure, finding: "The proceedings are essentially pre-emptive in nature — in theory the claimant might have waited to see if the Commonwealth of Kentucky would attempt enforcement proceedings and then defended them.
"But this seems to me to be a case where the pre-emptive approach was justified. The continued use of the domain name is clearly important to the claimant's business and it is at present in a state of uncertainty as to whether the Kentucky proceedings will be enforced."