Kentucky Supreme Court reverses 141 domains decision

In a surprising development, the Kentucky Supreme Court has reversed an earlier  Kentucky Court of Appeal ruling which had overturned a forfeiture order of 141 gaming related domain names.

The Supreme Court decision was made on a technical basis, that the parties appearing before the court had no standing. The Court highlighted that “writs are to be granted only as an extraordinary remedy, and certainly only when parties have demonstrated a concrete interest before the court.” The two groups appearing before the court as appellants were, the domain names and gaming associations, iMEGA and IGC representing anonymous domain registrants. The standing of these parties has been contested from the beginning of the matter, as Justice Noble stated “that the Commonwealth has challenged the standing of these individual domain names at every stage of the proceeding”.

Despite the Court holding that many of the arguments presented  by the domain names, and gaming associations were compelling and had merit, they could not be considered until a party with standing steps forward to defend them.

The ‘domain names’ were denied standing as the Court upheld the classic view that in order to have standing in a dispute involving property, you must own, or have an interest in the property.  The Court was of the view that the property does not have an interest in itself, and therefore, does not have any interest in the litigation.

iMEGA and IGC both claimed to represent registrants of some of the seized domains under the doctrine of associational trading. However both parties refused to reveal which registrants they were representing, without which, associated trading could not be achieved. The court took the hard line approach that “…the associations had every opportunity to cure their standing defects by identifying their seized members, in fact they were ordered to do so by the Franklin Circuit Court.  Refusing to follow this requirement, the associations do not have standing”.

However failure by both parties to establish standing in this writ action does not completely shut out relief by way of writ in the future. The Supreme Court explicitly noted that ”[i]f a party that can properly establish standing comes forward, the writ petition giving rise to these proceedings could be re-filed with the Court of Appeals.”

It appears the matter will not be put to rest just yet, as there is the possibility of one or more of the actual domain owners initiating proceedings which challenge the original order against them.  The gaming associations can also come forward with the names of one or more of the registrants they are representing to reinstate the case.