C-Byte Computer Systems LLC v. Trevor Biscope / C-Byte, Inc.
Claim Number: FA1310001523522
Complainant is C-Byte Computer Systems LLC (“Complainant”), represented by Wanda Brink, Colorado, USA. Respondent is Trevor Biscope / C-Byte, Inc. (“Respondent”), Montana, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue is <c-byte.net>, registered with Name.com LLC.
The domain name at issue is <c-bytecomputersystems.com>, registered with GANDI SAS.
The domain name at issue is <c-byte.com>, registered with REGISTER.COM, INC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2013; the National Arbitration Forum received payment on October 9, 2013.
On October 9, 2013, Name.com LLC confirmed by e-mail to the National Arbitration Forum that the <c-byte.net> domain name is registered with Name.com LLC, and that Respondent is the current registrant of the name. Name.com LLC has verified that Respondent is bound by the Name.com LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 9, 2013, GANDI SAS confirmed by e-mail to the National Arbitration Forum that the <c-bytecomputersystems.com> domain name is registered with GANDI SAS and that Respondent is the current registrant of the name. GANDI SAS has verified that Respondent is bound by the GANDI SAS registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 9, 2013, REGISTER.COM, INC. confirmed by e-mail to the National Arbitration Forum that the <c-byte.com> domain name is registered with REGISTER.COM, INC. and that Respondent is the current registrant of the names. REGISTER.COM, INC. has verified that Respondent is bound by the REGISTER.COM, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 11, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@c-byte.com, postmaster@c-byte.net, and postmaster@c-bytecomputersystems.com. Also on October 11, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on October 31, 2013.
A timely Additional Submission was received from Complainant and determined to be complete on November 5, 2013.
A timely Addition Submission was received from Respondent and determined to be complete on November 6, 2013.
On November 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
C-Byte Computer Systems LLC (Complainant) is a registered singlemember limited liability corporation formed under the laws of the state of Colorado United States of America.
Vegas Brand Enterprises Inc is the single member of the limited liability corporation C-Byte Computer Systems LLC.
The real office location of C-Byte Computer Systems LLC is 185 Broadway Ave, Alamosa, CO 81101.
FACTUAL AND LEGAL GROUNDS
This is a case of identity theft and domain hijacking. Funding has been difficult or this would have been filed sooner and the Respondent was aware of this took advantage of this delay to offer free membership in illegal online gambling etc. See list of games and one-step invite.
In
the beginning;
February 8, 2013, C-Byte Computer Systems LLC acquired the
domains <c-byte.com> and <c-byte.net> from the
original owner Trevor Biscope. (Respondent Trevor Biscope/C-Byte, Inc.)
Following that acquisition, C-Byte Computers Systems LLC invested in a EV SSL (green bar ssl) through Computer Parts Inc. (Colorado) program with Starfield Tech. for <c-byte.com> and a standard ssl for <c-byte.net>. Office space and signage as in the photos included in this matter. The sites are to be used to sell software and services to the public to the benefit of the corporations and to hire Respondent as technical support/ advisor/ and server side assistant. The sites were hosted at WWQuote of Calgary Alberta paid for by Computer Parts Inc. (Colorado).
The Respondent also assigned other sites to the main corporation at the initial startup of Vegas Brand Enterprises Inc., an EV SSL was provided to <vegas.xxx>. The server used was paid for by Computer Parts Inc. (Colorado) to WWQuote a Calgary Alberta company.
False Information and Separation:
The Respondent falsely provided the address of an attorney that did not represent him, and the attorney in question requested to be removed from the Colorado Secretary of State’s Filing record. That is in current process as the Secretary of State’s office could not give a definite time. That caused the corporation to restate and re-file the incorporation documents, of Vegas Brand Enterprises Inc., that is the single member of C-byte Computer Systems LLC. (Complainant). These domains <vegas.xxx>, <vegas.im>, <vegas.gb.com>, <vegas.ar.com> were returned with prejudice, to the Respondent upon cancellation of the Respondent’s Shareholder status Notice the dates Aug 7th 2013 that the Respondent updates the above domains. The Respondent was removed from the Complainant’s member corporation for conduct deemed improper, and unfit by the standards of the corporation.
[a.] [Specify in the space below the manner in which the domain
name(s) is/are identical or confusingly similar to a trademark or service mark
in which the Complainant has rights.]
UDRP Rule 3(b)(ix)(1); UDRP Policy ¶4(a)(i).
The Respondent, knew ahead of time that selling and transferring the
domains <c-byte.com> and <c-byte.net> on February 8, 2013
and the production of the EV SSL that C-Byte Computer Systems LLC would be
promoting the sale of computer equipment and software as a service to USA and
Colorado and international customers more particularly in the hotel resort and
casino businesses. Therefore any historic use of the domains by the Respondent
would cease to be relevant. Respondent used Colorado address in email. The
domains reflected the Colorado physical address before hijack.
The Respondent knowingly acquired <c-bytecomputersystems.com> Aug 14, 2013 before hijacking the domains <c-byte.com> and <c-byte.net> on Aug 16th, 2013.
[b.] [Specify in the space below why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint.] UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii).
The Respondent should have no rights to the domains because as follows:
1/ On Aug 16, 2013 at 5:17 p.m., the Respondent hacked the C-byte Computer System LLC account at Register.com and transferred the domain to his own account at Register.com and then used the first hacking to change the domain account <c-byte.net> at Name.com LLC to his ownership, because he had access to the email addresses of <c-byte.com>.
2/ On Aug 14th 2013 the Respondent registered <c-bytecomputersystems.com> with Gandi and currently has it pointed to <c-byte.com>. This hijacks the corporate identity and has the C-Byte Computer Systems LLC green bar ssl currently displayed when a person navigates to <vegas.xxx>.
3/ The hacking was done on a Friday at dinner time with the classic hacking style of changing password first and then changing the email address to his and then changed the phone number to his and moving the domain.
We immediately complained to customer service at Register.com and by email as per the received email notice of action as the phone number refuses to update to the correct information.
The time spent and the cost of filing this complaint is a financial and emotional burden. However, if the Complainant does not move forward with it, the UDRP the Complainant will continue to be held responsible for the deception and folly of the Respondent, as the domains current represent as of this filing, online gaming.
4/ The hacking of our account and impersonation of the Complainant Manager at Register.com perpetrated by the Respondent, shall prove beyond question, that the removal of the Respondent as technical support from the Complainant’s Register.com and Complainant’s organization was completely justified.
Consistent with false information the Respondent provided, the evidence bears witness, that the Complainant had reasonable cause to find the Respondent unfit for any business position in the Complainant’s corporate structure.
Therefore, the Complainant can make the reasonable judgment that the Respondent would impersonate the Complainant without conscience elsewhere in the cyber community, where hacking is the worst of offenses.
The Respondent is currently as of this filing using a Montana address and C-Byte Inc and that corporate name is NOT registered to do business in Montana as a domestic or foreign corporation and is still using the green bar ssl from C-Byte Computer Systems. The domain <onready.com> is the Respondents main domain for finding work on the Internet and the email address used in the hijacking.
The goal of the hijacker was to make a false appearance that the Manager of C-Byte Computer Systems LLC complied with his demands.
[The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(c): (i.) Whether, before any notice to the Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name is in connection with a bona fide offering of goods or services; or
The Respondent before notice of the dispute, threaten the Manager of C-Byte Computer Systems LLC with nasty emails if the corporation was to seek justice for the hijacking.
The Respondent sent spam emails to customers of Computer Parts Inc. (Colorado) the hosting Company that the Respondent owed monies to.
It is our strong belief that the Respondent placed the domains in C-Byte Computer Systems LLC corporate name deliberately, not only to have C-Byte Computer Systems LLC cover debts to the shareholders of Vegas Brand Enterprises Inc, and Computer Parts Inc (Colorado) but to have a new identity. Director and Shareholders of C-Byte Computer Systems LLC, single member Vegas Brand Enterprises Inc., did not fully understand the importance of this to the Respondent until the demand in late July to run illegal internet gambling and illegal auction software, from the server located at WWQuote facility, as the Respondent’s favorite phrase “maximum return for very little effort”. But when asked about the basic legal issues including gambling license(s), shipping, warehousing products to fund an auction or casino platform, the Respondent was short on answers and long on “trust me, I have done this for a long time, with important players like the Carbone family in Toronto, Canada ” In using the identity of C-Byte Computer Systems LLC and confusing it with a dissolved Alberta corporation C-Byte Inc, the Respondent would have zero responsibility for following the laws of the Canada, Colorado or Montana and the federal laws of United States. That would leave C-Byte Computer Systems LLC holding the bag and responsible for dealing with the fall out of the Respondents many lies.
List of false information supplied by Respondent:
1/ C-Byte Inc is NOT a legitimate Alberta, Canada corporation, and/or financing global projects
2/ The law firm:
c/o Kelly and Kelly Law Ofc
Percy Pyra
220 3505 32 Street NE
Calgary,
Alberta Canada T1Y 5Y9
DID NOT represent the Respondent at the time the Complainant’s documents were filed with the Secretary of State (Colorado) confirmed this in a phone conversation. The firm requested their information be removed from the Colorado Secretary of State website.
3/ The software platforms were developed by the Respondent (false) are copies that were supplied to him from various projects that he worked on.
4/ The Respondent wanted us to believe that the Carbone Family paid for his ownership of <vegas.xxx>. The auction account looks like their name was used it does not state that they gave permission…
The following is true from our research:
Fact: Canada’s Alberta Justice Department Maintenance Enforcement had served C-Byte Computer Systems LLC notice to receive payments from any employment offered to the Respondent. The Respondent absolutely refused to cooperate with the Alberta Maintenance Enforcement program and vowed to never pay them and be the first person in Canada to get away with it.
The Respondent was assisting the Complainant and was considered an employee until the separation; however, the Respondent would not supply the documents to verify identity necessary to actual initialize the setup of legal payroll with C-Byte Computer Systems LLC.
(ii.) Whether Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent has not acquired trademark or service mark rights; or
The Respondent had used the domain for a number of years to promote computer hardware and software services using the name C-Byte Inc., a dissolved Alberta Corporation numbered corporation, before selling and transferring the c-byte.com and c-byte.net domains to the corporation C-Byte Computer Systems LLC February 8th 2013. After the transfer date any history the domain had would cease to be relevant.
The August 14th 2013 before the hijacking of the domains <c-byte.com> and <c-byte.net> the Respondent registered <c-bytecomputersystems.com> with Gandi SAS.
(iii.) Whether Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.]
The Respondent is NOT making a legitimate noncommercial or fair use of the domains in question as they were sold to the corporation C-Byte Computer Systems LLC. Namely, the Respondent stole them when the Complainant refused to break the laws of Colorado regarding online gaming and auctions. This kind of operation carries fines and imprisonment.
The Respondent operates the hijacked the domains on a server plugged in at WW Quote’s operation in Calgary Alberta pretending to be C-Byte Computer Systems LLC., (Colorado) using the green bar ssl issued to the Complainant.
The Respondent has the domain <c-bytecomputersystems.com>, <c-byte.net> and <vegas.xxx> resolved to <c-byte.com>.
In using the stolen domains and identity of the C-Byte Computer Systems LLC jeopardizes the corporation’s financial stability not only with the child maintenance issue in Alberta, server payments to WWQuote, but the use of copyright materials and content that is contested by a media group from Washington state.
[c.] [Specify in the space below why the domain name(s) should be considered as having been registered and being used in bad faith.] UDRP Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii).[The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(b):
(i.) The Respondent has expertise in and works on server installations, software as a service and router setup.
The Respondent hijacked the domains and registered <c-bytecomputersystems.com> to acquire the corporate identity to hide from Alberta Justice Maintenance Enforcement program because it is a USA company. The Respondent’s use of the domains in question would not allow the Complainant to recoup any cost associated with the domains, sale of hardware, software, the green bar ssl, office space and signage. Whatever history the Respondent had with the domains in question became mute the moment the domains <c-byte.com> and <c-byte.net> were transferred to C-Byte Computer Systems LLC (Colorado) as clearly evidenced in the record.
(ii.) Whether Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent has not acquired trademark or service mark rights; or
The
Respondent first sold and transferred the domains <c-byte.com> and
<c-byte.net> to the Complainant and as the Complainant became more
aware of the Respondent continually providing false information and the intent
to knowingly break the gaming laws of Colorado, and would not consider the
consequences to the Complainant, et al., the Complainant was ordered by the LLC
member to end the relationship and contact. The Respondent was removed from
technical support at Register.com and then made demands that he be given the
domain authority codes immediately. When the Complainant did not do as the
Respondent demanded, the Respondent simply stole the domains by hacking /
impersonation / of the account at Register.com. NOT only did the Respondent NOT
have the password to the Complainant account, the Respondent had been
specifically removed from the account as tech support.
This is knowingly and intentionally attracting customers under false pretence as there is no registered business in Montana and the site is, as of this filing, using the Complainant’s green bar ssl and the phone number in the WHOIS record is an Alberta number that the Respondent uses across other domain registrations. The WHOIS record should be as in this.
(iii.) Whether
Respondent has registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
The
Respondent definitely registered <c-bytecomputersystems.com> to
distract potential customers away from the Complainant as this registration was
done two days before the other domains were hijacked.
(iv.) Whether by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location.]
As of this filing, the Respondent has the domains <c-byte.net>, <c-bytecomputersystems.com> and <vegas.xxx> resolving to <c-byte.com> and is using the EV Green Bar SSL issued to the Complainant.
B. Respondent
Dominic,
I'm sending you this email in response to the Complaint noted above.
I affirm that:
1. C-Byte Computer Systems LLC does not hold a registered trademark, copyright or patient, dated to 1989, in regards to anything related to <c-byte.com>.
2. Attached is a press release dated January 15, 2006, provided by <prweb.com>, dated long before any complaint send to this Respondent – This press release demonstrates the use of the domain name in connection with a bona fide offering of goods and services.
3. The press release also provides evidence that the Respondent (as an individual, business or other organization) has been commonly known by the domain name for more than a decade, even if this Respondent has acquired no trademark or service mark rights.
4. The press release also provides evidence that the Respondent is making a fair use of the domain name, without intent to misleadingly divert consumers or to tarnish the trademark or service mark of any individual, business or organization.
5. This Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
In summary, our group works very hard to make our products/services very attractive; this does drive people to want what C-Byte has.
Unfortunately, this does drive people to attempt to hijack something that does not belong to them, as in this case. I would ask that the panel member(s) dismiss this complaint on the merit stated in my response above.
Please take note of my email address and telephone number below if you have any further instructions, thank-you.
Regards,
/s/ Trevor Biscope
- ---------------------------------/----------------------------------------
Corporate Headquarters ___/__ US/Canada Headquarters (NOC38)
C-Byte Companies / Inside US Call: 1-800-393-5804
P.O. Box 8496 / Outside US Call: 1-403-770-7818
Kalispell, MT /_____ Phone: (403) 770-7818 ext 8738
U.S. 59904 / EMail: [readacted]
C. Additional Submissions
Respondent made an additional submission on October 9, 2013:
Dominic,
Thank-you.
There is no 'Trademark Dilemma' here, this is clearly a 'Reverse Domain Name Hijacking' attempt. The UDRP panelists are very familiar with this type of abuse of the UDRP process. Really other than just an unfair business practice - to file such complaints - I realize there is no tool to punish applicant's for the attempt.
Please take note of my email address and telephone number below if you have any further instructions, thank-you.
Regards,
C-BYTE
Trevor Biscope
---------------------------------/----------------------------------------
Corporate Headquarters ___/__ US/Canada Headquarters (NOC38)
C-Byte Group / Inside US Call: 1-800-393-5804
P.O. Box 8496 / Outside US Call: 1-403-770-7818
Kalispell, MT /_____ Phone: (403) 770-7818 ext 8738
U.S. 59904 / EMail: [redacted]
---------------------------/----------------------------------------------
Complainant submitted the following Additional Submission on November 5, 2013:
1/ Attached to the Response, the Respondent uses a promotional release that dates the use of the domain. The release is noted by the Respondent. In reviewing this exhibit, we have noted that the location Calgary AB and C-Byte Inc are prominently displayed. Attached is the NUANS report(s) that show this corporation was ‘struck’ June 2nd 2005, a term used by Canada to denote a company or corporation no longer doing business. The promotional statement is regarding a company that could NOT do business legally. This promotional statement is lacking the authenticity of a real corporation with a real business location. In a promotional/press release any statements made should be readily verifiable, and accurate. Not only have we shown in the main context of the complaint that the business name cannot be restated, we have add the list of the NUANs report to this additional submission.
l/(a) Additional information is supplied regarding the use of
the NUANs process adopted by
Canada in registering a business, as does each state in the USA require a
process to do business
that meets certain criteria.
l/(b) This
raises all kinds of questions not answered by the Respondent, as how are taxes
paid
and why would government(s) do business with a company that lacks the minimum
business stature, that simply being, of the required registration, to be in
business, in the first place.
I/(c) The
whole goal of ICANN is to provide the public truth and accuracy of domain
registration, registrars are required to remind their clients to update the
whois records regularly
to preserve the integrity of the web as a whole.
C-Byte Inc
simply no longer exists in the corporate world of Canada since 2005 and cannot
be revived. So the very basis of the Respondent’s 2008 press release, as
grandiose as it sounds, is a falsehood. Among others, the domains <c-byte.com>
and <c-byte.net> were transferred to C-Byte Computer Systems LLC
(Colorado) as outlined in the Complainant's main document. What
happened before the transfer in February of 2013 is a mute argument.
2/(a) An Affidavit from the original file is re-scanned and
added as the other scan
lacked details of the original document.
2 (b) Additional Affidavit from the member corporation, Secretary affirming the record.
3/ Attached our protest to Register.com and Name.com that the domain <c-byte.com> had been removed from our Register.com account "cpi-ebiz" and moved to the Respondent’s account with Register.com letter to WWQuote, as that is where the server is housed that is promoting illegal online gaming. We will never understand the Register.com process of not listening to us that the domain was removed. The Respondent took advantage of the process in that Register.com does not require an email verification process that a password is to be changed Register.com sent an email but the damage was done and continues to be done.
4/ Additional documents are identified as "UDRP <c-byte.com> Additional Submissions."
Respondent made the following additional submission on November 6, 2013:
Dominic,
I'm sending you this email in response to the Complaint noted above.
I affirm that:
1. Absent of a Registered Trademark, the Complainant's affidavit speak to no credibility whatsoever.
2. Attached is a press release dated April 21, 2005, provided by prweb.com, again dated long before any complaint sent to this Respondent – The press release further establishes, by use, as to the representation of the company and the product/services.
3. This Respondent has learned of the Complainant's registration of the domain names, c-byte.us & c-byte.info, which currently point to pay-per-click advertisements.
4. Not only is the Complainant's registration and use of these domains reckless endangerment, the Complainant's infringement undermines the credibility and trust that consumers associate with delivery of very critical products/services. To that end, this Respondent can bring a proceeding requiring the transfer of the domain names under this Policy.
5. However, the Respondent is willing to give the Complainant an opportunity to rectify the situation by immediately transferring the domain name's - c-byte.us & c-byte.info - to this Respondent by unlocking the Domain Name for transfer with your registrar and providing this Respondent with the EPP authorization codes.
6. If this Respondent does not have a substantive response to these demands, this Respondent will take the necessary steps, including but not limited to proceeding under the UDRP, to enforce its rights against you.
7. This Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
In summary, with a substantial increase in cybersquatting, and reverse domain hijacking - a clear message needs to be sent - we will not allow consumers to be misled.
I rest,
/s/ Trevor Biscope
- ---------------------------------/----------------------------------------
Corporate Headquarters ___/__ US/Canada Headquarters (NOC38)
C-Byte Companies / Inside US Call: 1-800-393-5804
P.O. Box 8496 / Outside US Call: 1-403-770-7818
Kalispell, MT /_____ Phone: (403) 770-7818 ext 8738
U.S. 59904 / EMail: [redacted]
- ---------------------------/----------------------------------------------
In response to the Panel’s order the parties’ submissions should be provided in a word process format within 10 days, Respondent emailed:
Dominic,
There's no ICANN rule that requires me to purchase a copy of Microsoft Word, or Word Perfect.
If your guy can't open an email and read it, then he should be in another line of work.
-TB
Complainant complied with the Panel’s additional submission order.
All additional submissions were considered.
Preliminary Issue: Multiple Respondents
In the instant proceedings, the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several slightly different aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Respondent (“Trevor Biscope/C-Byte, Inc.”) appears to have registered the <c-byte.com> and <c-byte.net> domain names under both Trevor Biscope and C-Byte, Inc. The <c-bytecomputersystems.com> domain name is registered to Trevor Biscope alone.
While Complainant’ pro se complaint is so inarticulate it borders on the incomprehensible, this Panel finds the disputed domain names are all controlled by a single entity, Trevor Biscope (who does not seem to contest the issue).
It should be noted Trevor Biscope previously sold Complainant the <c-byte.com> and <c-byte.net> domain names.
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Once again, the Panel notes Complainant’s Complaint is very difficult to understand and was obviously written by a pro se. While that does not change the burden of proof, this Panel tries to understand the essence of what the parties are trying to say. In this case, the Panel has relied extensively on the documents provided by both parties since neither of their written submissions were particularly helpful. The fact Complainant took no action because Complainant didn’t have adequate funds does not affect the Panel’s analysis in this proceeding.
Complainant is a single member limited liability corporation formed on February 5, 2013 under the laws of Colorado. Complainant has used the <c-byte.com> and <c-byte.net> domain names to sell software and services to the public. While Complainant has not registered its C-BYTE mark with any trademark authority, Policy ¶4(a)(i) does not require Complainant to register its trademark as long as it can demonstrate common law rights in the mark pursuant to Policy ¶4(a)(i). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under Policy ¶4(a)(i)).
Complainant acquired the <c-byte.com> and <c-byte.net> domain names from Respondent, the original owner, on February 8, 2013. Following Complainant’s acquisition of the <c-byte.com> and <c-byte.net> domain names, Complainant invested in an EV SSL (green bar ssl) through Computer Parts Inc. (Colorado) program with Starfield Tech for <c-byte.com>. In Goepfert v. Rogers, FA 861124 (Nat. Arb. Forum Jan. 17, 2007), the panel held that “[T]here is no particular amount of evidence required in order to establish common law rights. The determination of what is sufficient is ad hoc based on the specific facts and circumstances involved, as is the scope of the rights once established.” Complainant has provided sufficient evidence to prove secondary meaning in its C-BYTE mark. Complainant has sufficiently proved its rights in the C-BYTE mark under Policy ¶4(a)(i).
Respondent’s <c-byte.com> and <c-byte.net> domain names are identical to Complainant’s C-BYTE mark. Respondent incorporates Complainant’s C-BYTE mark and simply adds the generic top-level domains (“gTLD”) “.com” or “.net.” The addition of a gTLD is irrelevant to a Policy ¶4(a)(i) analysis. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant’s RED HAT mark because the mere addition of gTLD was insufficient to differentiate the disputed domain name from the mark). Accordingly, Respondent’s <c-byte.com> and <c-byte.net> domain names are identical to Complainant’s C-BYTE mark under Policy ¶4(a)(i).
Respondent’s <c-bytecomputersystems.com> domain name is confusingly similar to Complainant’s C-BYTE mark. Respondent includes Complainant’s entire C-BYTE mark and merely adds the descriptive phrase “computersystems” (which also happens to be part of Complainant’s name). In Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002), the panel found that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark. Respondent’s addition of a descriptive word does not affect a Policy ¶4(a)(i) determination. Adding a gTLD “.com” to Complainant’s mark for its disputed domain name may also be disregarded because domain name syntax requires either a gTLD or ccTLD. Respondent’s addition of a gTLD does not adequately differentiate the domain name from Complainant’s mark under Policy ¶4(a)(i). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). Respondent’s <c-bytecomputersystems.com> domain name is confusingly similar to Complainant’s C-BYTE mark pursuant to Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
First of all, Respondent sold the <c-byte.com> and <c-byte.net> domain names to Complainant’s agent on February 8, 2013 (when they were immediately placed into Complainant’s name). When that occurred, Respondent transferred all of his rights to Complainant. Respondent has done nothing to show what rights he acquired since re-acquiring the <c-byte.com> and <c-byte.net> domain names.
Complaint claims Respondent stole the <c-byte.com> and <c-byte.net> domain names on August 16, 2013. Respondent has not denied this allegation and has merely said this is a dispute between two people who have equal rights to a mark. This Panel does not think so and adopts the common law maxim that a thief cannot acquire any rights, especially rights against the true owner.
Respondent is not commonly known by the <c-byte.com>, <c-byte.net>, <c-bytecomputersystems.com> domain names. The WHOIS information identifies the registrant of the domain names as “Trevor Biscope / C-Byte, Inc.” There is no C-Byte, Inc. in Montana, at least according to the Montana Secretary of State. Respondent has shown no information which would suggest C-Byte, Inc. exists anywhere.
Respondent’s January 15, 2008 press release means nothing because Respondent sold his rights to Complainant on February 8, 2013. The Panel finds Respondent is not commonly known by the <c-byte.com>, <c-byte.net>, <c-bytecomputersystems.com> domain names under Policy ¶4(c)(ii).
Complainant claims Respondent is using the <c-byte.com>, <c-byte.net>, <c-bytecomputersystems.com> domain names to offer free membership in illegal online gambling operation. Respondent’s disputed domain names resolve to a webpage titled “vegas brand,” listing online games such as “Poker, Backgammon, and Mahjong.” In Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006), the panel concluded that respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). This Panel finds Respondent’s use of the disputed domain names to provide an illegal use or services does not constitute a Policy ¶4(c)(i) bona fide offering of goods or services or a Policy ¶4(c)(iii) legitimate noncommercial or fair use.
It should also be noted Respondent deliberately provided false contact information when Respondent registered the disputed domain names. This prevents Respondent from acquiring any rights to the domain names under the UDRP.
Respondent claims this matter is outside the UDRP (and also essentially tells Complainant “you will rue the day you fired me”). This is not a case where Complainant authorized Respondent to register a domain name in Respondent’s own name. Complainant owned the <c-byte.com> and <c-byte.net> domain names. There were properly registered in Complainant’s own name. The fact Respondent stole them does not remove this matter from the UDRP because this is suddenly and exclusively a “contractual dispute.”
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent registered <c-bytecomputersystems.com> to distract potential customers away from Complainant. Respondent registered the <c-bytecomputersystems.com> domain name two days before the <c-byte.com> and <c-byte.net> domain names were hijacked. Respondent’s disputed domain names resolve to a webpage titled “vegas brand,” listing online games such as “Poker, Backgammon, and Mahjong.” While panels typically do not find disruption where Respondent uses the disputed domain names for a purpose unrelated to Complainant, this Respondent had the specific animus to harm Complainant and said so. There is no better way to prove bad faith use and registration than having Respondent admit it in an email to Complainant.
Respondent has the domains <c-byte.net>, <c-bytecomputersystems.com>, and <vegas.xxx> resolving to <c-byte.com> and is using the EV Green Bar SSL issued to Complainant (which he presumably had access to as Complainant’s former employee, something Respondent does not deny). Respondent’s disputed domain names resolve to a webpage titled “vegas brand,” listing online games such as “Poker, Backgammon, and Mahjong.” Respondent presumably commercially benefits through its use of the <c-byte.com>, <c-byte.net>, and <c-bytecomputersystems.com> domain names to provide illegal gambling services. Therefore, this Panel finds Respondent’s use of the disputed domain names to provide illegal online gambling services shows bad faith under Policy ¶4(b)(iv). See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant’s mark, to a gambling website).
On August 16, 2013, Respondent hacked Complainant’s account at Register.com and transferred the <c-byte.com> domain to his own account at Register.com and then used the first hacking to change the domain account <c-byte.net> at Name.com LLC to his ownership, because he had access to the email addresses of <c-byte.com>. In Swaningson v. thu lins, FA 1264365 (Nat. Arb. Forum July 1, 2009), the panel held Respondent’s illegal action of hacking Complainant’s registration account was evidence Respondent registered and was using the disputed domain name in bad faith pursuant to Policy ¶4(a)(iii). Respondent’s hacking of the <c-byte.com> and <c-byte.net> domain names constitutes bad faith under Policy ¶4(a)(iii).
Respondent knew before he sold and transferred the <c-byte.com> and <c-byte.net> domains to Complainant on February 8, 2013 and Complainant acquired the EV SSL, that Complainant would be promoting the sale of computer equipment and software. Respondent obviously knew of Complainant’s rights in the domain names due to Respondent’s transfer of the <c-byte.com> and <c-byte.net> domain names to Complainant on February 8, 2013. Respondent had actual knowledge of Complainant's mark and rights and Respondent registered the <c-byte.com>, <c-byte.net>, and <c-bytecomputersystems.com> domain names in bad faith under Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Respondent is also using the disputed domain name to deliberately injure Complainant’s business reputation by impersonating her. That isn’t a good faith registration and use of the disputed domain names.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <c-byte.com>, <c-byte.net>, and
<cbytecomputersystems.com> domain names be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Thursday, November 21, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page