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32Red wins the trademark numbers game


William Hill’s attacking appeal against a judgement that it infringed 32Red’s trademarks with the 32Vegas brand has been unsuccessful.


TRADEMARK


William Hill’s all out attack on the judgement that it infringed 32Red trade- marks with its 32Vegas online casino has been thrown out of the Court of Appeal. The court described Hill’s appeal as ‘a full-scale, wide-ranging attack on the Judge’s analy- sis and conclusions on vir- tually every aspect of his judgment’, but still upheld the original judgement. Last year, following a six day trial at the High Court, 32Vegas business was held to have infringed two of 32Red’s European commu- nity trademarks. William Hill’s counterclaim that the ‘32Red’ and ‘32’ trademarks should be invalidated, failed. Subsequently, the judge ordered that 32Red be granted an injunction against William Hill and ordered an inquiry to assess monetary damages, which is ongoing. Hill’s appeal seems to have backfired as the Appeal court went further than the High Court and, after a ‘cross-appeal’ by 32Red, found that William Hill also infringed 32Red’s registered trademark for ‘32’ and held that a further reason for finding infringe- ment was that William Hill took unfair advantage of 32Red’s well known trade- marks.


A large chunk of the


appeal rested on William Hill’s assertion that the number 32 on its own could not be registered as a trade- mark, referring to Euro- pean cases Postkantoor and Technopol, the latter coming after the original judgement and saw the refusal to trademark the number 1000. However, Lord Justice Etherton, supported by Lord Justice Toulson and Lord Justice Kitchin, com- mented: “In Technopol 1000 was capable of describing a feature of the goods in respect of which registra- tion was sought, such as the number of pages or works or the number of crossword puzzles in periodicals. The bare number 32 is not descriptive of any charac- teristic of the services pro- vided by the respondent. It is merely an allusion to an aspect of the game which the punter will play if he or she uses the respondent’s services. The number does not in any way characterise the respondent’s services in the sense of describing what will be supplied. In my judgment, the Judge stated the correct test, formulated the correct question, and answered it correctly in his judgment.”


The costs associated with the Appeal, along with interest, have been awarded to 32Red and an


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Probability ‘excited’ about US developments


MOBILE M


WILLIAM HILL ARGUED WHETHER THE NUMBER 32 COULD BE TRADEMARKED


initial sum of £70,000 is payable to 32Red within 14 days. The level of damages relating to this case and the liability for costs associ- ated with the original Hear- ing will be assessed in an inquiry process before the High Court, now scheduled to be heard early in 2013. Ed Ware, CEO of 32Red,


said: “We are delighted that the Court of Appeal has cat- egorically dismissed William Hill’s appeal. The success of our cross-appeal is also very satisfying. Quite correctly, the Court of Appeal’s judgment also sup- ported the view that taking advantage of a well known brand such as 32Red is not acceptable.


“This judgment further underlines our Intellectual Property Rights and should deter other operators from infringing our trade marks. We are now focused on concluding this matter with William Hill and have already begun prepara- tions for the inquiry into damages.”


ANALYSIS


After three years of arguments in and out of courts it has been concluded that the ‘32Red’ and ‘32’ trademarks are valid; the 32Red marks were


infringed by William Hill’s use of 32Vegas; the 32 mark was infringed by William Hill’s use of 32Vegas and that the use of 32Vegas took unfair advantage of 32Red’s trademarks. William Hill, not used to losing in the courtroom, will now have to lick its wounds and hope that its appeal hasn’t ended up costing it double the damages that it would have had to pay initially, when it was only deemed to have broken the one trademark.


obile gaming operator Probability plc has revealed that it has ‘noted with interest recent developments in the United States’ and it seems that it very much has designs on moving into the country. The firm is currently applying for a Nevada licence after the DoJ’s reinterpretation of the Wire Act effectively gave individ- ual States the ability to deter- mine their own regulations within their own borders. Probability CEO Charles Cohen said: “We are very excited by the prospect of individual states opening their local markets and already it seems that several are making plans to do just that. This is a perfect scenario for mobile gambling because mobile is the only platform where the location of the user can be assured with any degree of certainty at the time they place their bets. Over 109,000,000 Americans are already using apps on smartphones which are capable of running our games.


“Probability has never taken wagers from US players and has always maintained a clean sheet as a responsible regulated operator generally. Without prior misde- meanours, we expect entry to the emerging US e-gaming and e-lottery market to be a realis- tic opportunity for us. We intend to actively pursue this opportunity and are already


engaged in early stage discus- sions with several parties in the US to explore our options.” The firm is close to activat- ing its service in Mexico with Caliente, which it anticipates going live between April and June, but things are a bit more sluggish in Italy. Cohen explained: “We are still on hold in respect of Italy. The Italian regulator (AAMS) has yet to authorise the offering of slots games, without which we cannot offer a commercially viable service. AAMS has no fixed timetable for making a decision so we are unable to offer any additional guidance on when this might happen.” The firm also said that it is ‘clearly seeing the benefits’ of its increased and sustained investment in television advertising to attract new players. It said that yields per player have continued to increase, due to continued product investment and Prob- ability’s CRM capability. Cohen added: “Net gaming revenues were not just better compared to last year, they were also 10 per cent above July to September this year. The payback period on TV advertising remains around five to six months after the cost of the airtime is actually incurred. A significant invest- ment in February and March 2012 would result in lower than forecast profitability in the short term because of this timing difference.”


PAYBACK PERIOD ON PROBABILITY’S TV ADVERTISING REMAINS


AROUND FIVE TO SIX MONTHS


Codere calls for new laws for whole gambling industry SPAIN J


aime Estalella, COO Europe for the Codere Group, has complained that land-based operators in Spain are being dis- criminated against by the coun- try’s new online gaming law, which could see companies licensed to operate online as early as the end of next month. Estalella made the comments at the ‘Com- peting in Gaming Regulated Mar- kets: the Spanish Case’ seminar held during ICE Totally Gaming, in which eliminating the imbalance between traditional and online


operators in Spain to ensure the continuity of the gaming industry had been one of the main topics. The recent enactment in Spain of Law 13/2011 on online gaming opens the door to an important market that closes the gap with the UK and France in Europe, according to Estalella. Codere says that the new avenue for the granting of gaming licences in Spain provides a new opportunity to regulate the imbalance between traditional gaming oper- ators and online operators, who


6 BettingBusinessInteractive • FEBRUARY 2012


have been operating outside the law in Spain for years.


Estalella highlighted what his firm perceives as current unfair competition existing in the Span- ish market and the ‘baseline dis- advantage that traditional operators’ will suffer in a heavily regulated industry where there is an almost total restriction on advertising. Traditional operators have paid a significant tax burden for years, he argued, while other companies have operated out- side of the law from tax havens


and have illegally created cus- tomer databases in Spain to launch marketing and branding activities.


He continued that these unre- solved deficiencies in the Span- ish market evidence, on the one hand, the need to regulate this emerging online channel and, on the other, highlight the need to promote a comprehensive approach to the gaming business, in which the online channel is just another tool in this activity and without ignoring the proper link-


age thereof with land-based gaming. Estalella also highlighted the need for Codere to increase gaming activities in other chan- nels and adapt its products to the online channel.


He suggested that the Italian model, based on the existence of a network of operators with guar- anteed solvency and market experience, is a good point of ref- erence for the new regulatory model for the Spanish market, which needs to go beyond the online channel.


ACTION IMAGES / PAUL CURRIE LIVEPIC


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