The owner of the poker website excaliburpoker.com has filed a motion to dismiss the lawsuit filed against him by MGM Resorts International, who claims that the website infringes on the trademark held by MGM for its popular Excalibur Hotel & Casino.
Adam Majewski of McKinney, Texas, says he is an entrepreneur engaged in internet marketing, social media and online gambling and that his website in no way infringes on MGM’s trademark casino. Majewski’s site is merely a page that does not offer online gaming and has remained as such for several years after he acquired the domain name, the court filing said.
“Excalibur is not a distinctive mark,” Majewski’s court documents stated. “It was the sword of kings in the Arthur legends. Thousands of businesses use this name – Excalibur Bowling, Excalibur Taxi and even Excalibur Condoms.”
In early December, MGM filed legal action against four individuals and two companies who had registered domain names for seven poker websites that are using the names of well-known MGM casinos. In addition to excaliburpoker.com, the other websites MGM accuses of infringement are mgmpoker.com, mandalaybayonlinepoker.com, ariapoker.com, circuscircuspoker.com, bellagioonlinepoker.com, and luxorpoker.com.
MGM claims in its lawsuit that the defendants are attempting to profit on MGM’s well-recognized name and its substantial investment over the years in advertising and promoting the brick-and-mortar casinos. The domain name registrants are guilty of “cybersquatting” and “have done nothing more than tack on the descriptive terms ‘poker’ or ‘online poker’ to each of the MGM marks to form the domain names,’ thereby causing confusion with the MGM trademarks, the casino companies’ lawsuit said.
In Majewski’s motion to dismiss, he claims that the excaliburpoker.com site doesn’t compete with Excalibur Hotel & Casino and “there is no likelihood of confusion because the hotel does not offer online gaming.” Majewski said he purposely avoided Nevada casinos with his registered online poker sites and has registered domain names for various U.S. cities and free poker such as BostonFreePoker.com and DallasFreePoker.com with the intention that players could play poker against others in their specific hometowns for prizes provided by local advertisers.
“I specifically left off Las Vegas, Reno and Henderson as I concluded that individuals that could already gamble for real money would not want to play for prizes valued at a few dollars,” he said.
It is typical in trademark infringement matters for the trademark holder to first request that the accused party “cease and desist” from using the trademark. Majewski complained that MGM “made no attempt to contact me prior to filing this action” and the lawsuit was initiated to “impose substantial burdens on me to defend my private property,” including the travel expenses of answering the allegations in a Nevada courtroom.
Last month, the Nevada State Gaming Control Board (NGCB) started accepting applications for internet poker licenses on an intrastate level. The licenses would permit operators to provide online poker services, but that would still be on hold until the federal government regulates online gaming or the NGCB obtains assurances from federal authorities that running a state-wide poker site would be legal. Many Nevada casinos are proceeding accordingly, attempting to secure licensing in order to be prepared for when online poker is legalized in the U. S.
The defendants registered the poker domain names between 2002 and 2005. Majewski believes that MGM is now concerned about the possible legalization of online poker in the U.S., but is rather tardy in protecting its marks that have nothing to do with online poker.
“Recent changes in Nevada law have opened up the prospect for internet gambling,” Majewski’s filing states. “Late to the feeding frenzy, MGM wants to leverage the well-known names of its hotels in Las Vegas.”
U.S. District Judge Philip Pro issued a preliminary injunction ruling in MGM’s favor that blocks the poker website owners, Majewski and the other five named defendants, from possibly transferring them to other or new domain name registrars and/or transferring the registrations to other entities or people. This is accomplished by ordering GoDaddy.com and/or other registrars to “place the domain names on hold and lock and deposit them into the registry of the court.”
“The issuance of a preliminary injunction is in the public interest because it would protect consumers against deception and confusion arising from domain names containing plaintiff’s trademarks, and from the use of plaintiff’s trademarks, by persons other than plaintiff,” the order says.
The judge indicated that Majewski’s motion for dismissal will be considered after all the parties have filed their necessary pleadings. The Texas entrepreneur also urged the court to transfer the lawsuit to Dallas if his pleading fails to persuade the judge to dismiss the case.