Kentucky in no state to seize domain name

Here's a little curio, courtesy of the LexisNexis Butterworths Update service: it's Pocket Kings Ltd v Safenames Ltd and another [2009] EWHC 2529 (Ch), a 16 October 2009 decision of Michael Furness QC, sitting as a deputy judge of the High Court, England and Wales.

Right: The IPKat avoids poker websites, preferring the old fashioned form of the game

Pocket Kings was an online gaming services operator which both and facilitated and licensed the use of its domain name fulltiltpoker.com. Safenames, an English company, was contractually responsible for pointing the fulltiltpoker.com domain name towards Pocket Kings' domain name servers. In 2008 the State of Kentucky, in the course of enforcing its criminal laws, sought penal forfeiture of the fulltiltpoker.com domain name on the basis that it had been used in the commission of multiple crimes within Kentucky. A seizure order was made and served on Safenames, requiring it to transfer the domain name immediately transferred to an account of Kentucky.

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. After Safenames failed to give it, 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. Before giving judgment, the Court had to satisfy itself on a number of issues.

The Deputy Judge allowed the application. In his view

* Kentucky was not itself a State within the meaning of the State Immunity Act 1978, so could not rely on s.12(1) of that Act which provides:

"Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry ... (4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and time has expired ... ".

* The United States was a sovereign state but Kentucky was just one of its constituent territories. Under Section 14 of the same Act:

"(1) The immunities and privileges conferred by this Part of this Act apply to ... (a) the sovereign or other head of a State in his public capacity; (b) the government of that State; and (c) any department of that government, but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued. (2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if—(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State would have been so immune. (3) If a separate entity submits to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity by virtue of subsection (2) above, subsections (1) to (4) of section 13 above shall apply to it in respect of those proceedings as if references to a State were references to that entity ... (5) Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State ... ".

This provision clearly distinguished between 'the state' and a constituent territory of a federal state and the law would not make sense if it was possible for an entity to be both a constituent territory of a federal state and a state in its own right.

* In order to attract immunity, Kentucky would have had to be doing something in the exercise of 'sovereign authority'. The Kentucky proceedings had been brought under local law by a local public official and not by a federal agency. Immunity was not available to Kentucky because the authority by which it regulated gambling within the Commonwealth was an exercise of its own sovereignty and not the sovereignty of the federal Government of the US.

* There was no independent immunity for separate entities or constituent territories; such immunity as they enjoyed was parasitic on the immunity conferred on the State.

* In the case of penal and public laws, the basis of non-enforceability was identified as being that one state did not recognise within its own jurisdiction the penal or public acts of another sovereign state. Although Kentucky was not a sovereign state, the penal and public acts in question had been undertaken by a government which was a constituent part of a sovereign state. If a sovereign state's penal and public acts were not enforceable, the penal and public acts of the government of a constituent part of the sovereign state had to be non-enforceable. Accordingly Kentucky's proceedings were not enforceable in English law as being penal and governmental in nature.

Says the IPKat, this case does something to clarify the questions which many have asked concerning the fate of domain names the use of which is lawful in some jurisdictions but not in others. It seems that the fate of a domain name -- which may be registered as or incorporate a trade mark -- will depend on, among other things, the status of the foreign government and the juridical nature of its penal system. Says Merpel, I wonder how many people misread, as I did, fulltiltpoker.com as futilitypoker.com.

How to play poker here
Red hot pokers here and here