As such, it soon became clear that both sides had tasks at hand. Schiavio would have to come up with a real business purpose for the domain name wsop.com, and it would be helped if he could show some prior use and purpose for the name. His first effort was to file a trademark application for an entity with the ridiculous name of “Infodomini’s First Annual WSOP Poker” and the mark "WSOP," which also included a logo bearing an uncomfortable resemblance to one already used by the World Series of Poker. The “Infodomini” part referred to another Schiavio-associated enterprise, and the “WSOP” was just tossed in there, gratuitously, serving no real function.
As one might expect, Harrah’s had little problem in having this first application tossed from the trademark system. As Schiavio's battle with Harrah's escalated, he realized that in order to further his claim to legitimacy, "WSOP" would have to stand for something other than what everyone within the poker world knew it referred to, that being the World Series of Poker.
Soon, Schiavio would affirm that WSOP stood for “World’s Standard of Online Poker.” Along with this, spread out over months, came grandiose announcements of planned online tournaments, an online poker room, discussion forums... basically all the stuff that goes with a major, legitimate online site. Something along this line did happen, when Schiavio signed on as the key affiliate of a Prima (now Microgaming) skin called All In Poker, a separate weird tale we'll get to in Part 5. Schiavio was rather more than an ordinary affiliate, and may well be a silent partner in All In Poker itself. Whatever the truth on that point, however, it's just a part of the long series of machinations that Schiavio has undertaken to claim a stake in those four magic letters... WSOP.
We’ll come back to Schiavio’s later workings in a bit, but one other major task remained; his case would be immeasurably stronger if he could show prior usage of the letters WSOP. He could easily point to the registration of the domain name wsop.com, because that occurred many months before Harrah’s acquired its interest, but the problem soon became clear to both parties --- Schiavio and Harrah’s --- that the real outcome of the dispute would be a test of the correlation between “WSOP” and “World Series of Poker” itself.
Despite the fact that Binion’s had never registered WSOP as a trademark, the law allows that a trademark can be assumed to be in place when usage of a given term or name becomes an overwhelmingly common identifier with a given brand. By this logic, claimed Harrah’s, they were entitled to trademark and brand-name protection for WSOP, since it had long since come to have an in-common meaning with the World Series of Poker.
Everyone with half a poker brain knew that the acronym WSOP was in common usage in relation to the World Series of Poker, but could Harrah’s prove that the usage was so predominant, so unique that it was inextricably tied to the World Series of Poker brand? One would think that this would be easy to prove, but Harrah’s legal staff did an arguably poor job. Their initial efforts, as outlined in an April 30, 2004 communication to Schiavio’s attorney, outlined the problems of doing A-B-C-style research. Imagine a conversation from the assigned Harrah’s attorney to a staff researcher as follows:
“Take a look at this Binions.com domain, and see if you can dig up some old pages from previous years. And if you can find anything that has WSOP on it, then print it off and try to date it, and we’ll see if it can be used.”
And that seems to be pretty much how it happened. Whoever did the checking knew enough about the Internet to be able to discover one of the main historical repositories of old sites, the Internet Archive Wayback Machine available at www.webarchive.org. Sure enough, the pages there show that the binions.com site was recorded as first having content in June, 2000, and it was easy enough to find examples showing WSOP in usage, such as these:
Yes, they all date from 2000, and they’re not the only examples. However, when confronted with samples such as these, Schiavio’s lawyer, in a response dated May 10, 2004, offered the following:
"The inconspicuous use of WSOP in the materials provided with your letter is insufficient to establish trademark rights. If anything, the materials appear to buttress Mr. Schiavio’s claim that Binion’s never adopted or used WSOP as a trademark. In addition, we have not seen documentation of the purported transfer of WSOP to Harrah’s. In order to evaluate your client’s demands, we would request (a) specimens showing trademark use of WSOP by Harrah’s predecessor and (b) a redacted copy of a Trademark Assignment or similar instrument pursuant to which the mark is transferred to Harrah’s.
Even if Harrah’s owns rights in the mark, any enforcement action would be blocked by laches, acquiescence, and related equitable defenses. Your letter does not address our statement that the “wsop.com” domain name was registered and has at all times been used by Mr. Schiavio in good faith. Evidence of bad faith is required in any proceeding to compel the transfer of a domain name.”
In other words, said Schiavio to Harrah’s, so what? Well, here’s the so-what about the above. Had whoever had done the research on Harrah’s behalf at the Wayback site mentioned above just been curious enough to type “wsop.com” into the search box on the main page, they’d have uncovered the original site from 1998, as detailed back in Part 1 of this series. Here’s what the complete history for the domain wsop.com shows, per that archive reference. The first image captures the beginnings of the site in 1998, and the second image shows the extent of Schiavio's work with the site --- a little bit in 2003, and much more in 2004 and beyond:
For comparison, here's how progress occurred over at the binions.com site beginning in 2000:
Each of the dates shown is a link to some sort of information about the site as it existed on that day, and it’s by clicking on these links that one discovers what the site looked like. Content is archived in an incomplete form, and occasionally the links themselves don’t work, but the very first link, from February, 1998, is a goldmine. Not only is there a clear record that the site wsop.com being used to promote the World Series of Poker, it establishes an irrefutable tie between “World Series of Poker” and “WSOP.”
The 1998 wsop.com site appears to be the first-ever site created to serve as an online historical/promotional front for the World Series of Poker, despite the fact that it was privately owned by a prominent Binion's employee, Jim Albrecht. It also illustrates, as mentioned back in Part 1, a point magnitudes greater in importance than of the material Harrah's assembled in the initial complaint: As far as Binion’s was concerned at the time, wsop.com was the preferred form for Internet use.
At this point the sharp-eyed reader wonders, “But wait! Can we prove a continuing connection between Binion's and the original wsop.com site?” After all, there remains the off possibility that the 1998 wsop.com effort was a fan site created by Albrecht, dedicated to but not necessarily a part of the Binion’s corporate scene. We also know that Albrecht took the domain name with him when he left, and amid the greater turmoil of the Binion-Behnen war, Becky Behnen came to the eventual decision to place continuing World Series of Poker information within the binions.com site instead of challenging for or purchasing control of wsop.com from Albrecht.
How do we know that the initial wsop.com site was an in-house project? The answer lies in a comparison of two screen grabs, although these are just an illustration of the larger proof. The first is taken from the “Gallery of Champions” web page as it appeared on the old February, 1998 wsop.com site:
Now compare that to this second screen grab, which captures a newer version of the “Gallery of Champions” web page, this time as it appeared upon its creation in June of 2000:
The second one’s been prettied up a bit, but we’re not worried about that. Compare the text in one to the other -- it’s a word-for-word match. That’s convincing evidence that this content originated within Binion's, allowing it to be rolled forward for use on this new binions.com site. (Yes, the "WSOP" usage at the bottom is noted as well.) But don’t stop there. Think about who it was that likely knew all about the old wsop.com site, can demonstrably be shown to have web page and graphic-design skills, and who was the boss computer guy for this stuff at Binion’s, beginning in 1999. It’d be none other than Becky Behnen's information technology director, Federico Schiavio.
It’s not certain that Schiavio was the person who copied the text forward from the old wsop.com site for its upgraded binions.com use, but it’s impossible to name a likelier candidate. Further, it places Schiavio in direct contradiction to this statement, made by his legal reprsentation in a document called the "WSOP Supplemental Review Rebuttal," dated October 19, 2004:
"Applicant filed the application in January 2004. He registered thewww.wsop.com domain name for his website in May 2003. See Whois attachment. The printouts submitted by the Examining Attorney show some use of the acronym WSOP in connection with the World Series of Poker event in April/May 2004 (after the Applicant's filing) and for 2005. There is no evidence of use of WSOP in connection with the World Series of Poker before Applicant filed his application.
It's one thing to say that Harrah's hasn't submitted proper evidence, because there's little doubt Harrah's screwed this one up. But that's different than saying there is no evidence, as we've shown above and in Part 1. The above is a blatant falsehood.
Next -- Part IV: The Lawyers Always Get Theirs
© 2007, Haley L. Hintze. All Rights Reserved.
Creative Commons Rights Superceded on this Material.
Creative Commons Rights Superceded on this Material.
Link to Introduction
Link to Part 1
Link to Part 2
Link to Part 3
Link to Part 4
Link to Part 5
Link to Part 6
1 comment:
great reporting. kudos.
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