C-Byte Computer Systems LLCv.Trevor Biscope

Trademark Trial and Appeal Board

Feb 6, 2019

OPP (T.T.A.B. Feb. 6, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: February 6, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

C-Byte Computer Systems LLC
v.
Biscope

_____

Opposition No. 91224409
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Scott E. Brenner and Thomas P. Howard of Thomas P. Howard, LLC,
for C-Byte Computer Systems LLC

Richard H. Newman of Newman Law, LLC
for Trevor Biscope.

_____

Before Ritchie, Goodman, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
On March 20, 2015, Trevor Biscope (“Applicant”) applied to register C-BYTE, in
standard character form, for the following services in International Class 421:
Information technology consulting services; Consulting services in the
design and implementation of computer-based information systems for
businesses; Consulting services in the field of design, selection,
implementation and use of computer hardware and software systems for
others; Computer services, namely, providing virtual and non virtual

1 Application Serial No. 86571876 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), alleging dates of first use and first use in commerce in December 1989.
Opposition No. 91224409
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application servers, web servers, file servers, co-location servers, load
balancing servers, redundancy servers, media servers and database
servers of variable capacity to third party computing and data storage
facilities; Developing and hosting a server on a global computer network
for the purpose of facilitating e-commerce via such a server; Technical
support services, namely, migration of datacenter, server and database
applications; Technical support services, namely, technical
administration of servers for others and troubleshooting in the nature
of diagnosing server problems; Computer programming services,
namely, on-line transaction processing (OLTP) and decision support
(DSS) applications.

C-Byte Computer Systems LLC (“Opposer”) has filed a notice of opposition, which,
as amended, alleges that Opposer “is the owner of common law trademark rights in
the trademark C-BYTE for sales and service of computer hardware and software, as
well as related consulting and support services.”2 Opposer further alleges that
“Opposer has priority in its use of the C-BYTE mark,”3 and that registration of
Applicant’s mark is “likely to cause confusion, mistake, or deception” with Opposer’s
C-BYTE mark.4
Applicant denied the salient allegations of the amended notice. The case is fully
briefed.

2 11 TTABVUE 2 (para. 3) (First Amended Notice of Opposition).
3 11 TTABVUE 4 (para. 18).
4 11 TTABVUE 5 (paragraph 27). Opposer additionally pleaded a claim of false suggestion of
a connection. Since Opposer did not pursue the false suggestion claim with its brief, we deem
it to be waived. See UMG Recordings Inc. v. O’Rourke, 92 USPQ2d 1042, 1045 (TTAB 2009)
(“In its main brief . . . opposer lists the only question presented as whether there exists a
likelihood of confusion, and we therefore consider opposer to have waived its dilution claim);
Viacom Int’l Inc. v. Komm, 46 USPQ2d 1233, 1235 n.3 (TTAB 1998 (“Opposer also pleaded in
its notice of opposition that applicants’ mark would falsely suggest a connection with opposer.
However, this issue was not briefed by opposer, and we therefore deem this Section 2(a) claim
to have been waived.”).
Opposition No. 91224409
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I. The Record and Evidentiary Issues
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the subject application. In addition, Opposer submitted
a declaration of its founder and principal, Wanda Brink, dated December 14, 2017,
along with exhibits thereto.5 Opposer also submitted a notice of reliance, attaching
Opposer’s unpleaded application for C-BYTE;6 evidence of Opposer’s use of the C-
BYTE mark; publications; and Applicant’s unverified responses to interrogatories,
requests for admission, and requests for production.7
Applicant did not submit any evidence or testimony.
II. Standing and Priority
Standing is a threshold issue that must be proven in every inter partes case. See
Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058,
1062 (Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185, 189 (CCPA 1982) (“The facts regarding standing . . . must be affirmatively
proved.”) To have standing, a plaintiff must have a real interest, i.e., a personal stake
in the outcome of the proceeding and a reasonable basis for its belief that it will be
damaged. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir.
1999).
Opposer did not plead ownership of a trademark application or registration.

5 25 TTABVUE 40.
6 Application Serial No. 87027359 was filed on May 6, 2016, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging dates of first use and first use in commerce on
February 18, 2013.
7 25 TTABVUE.
Opposition No. 91224409
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However, Opposer did introduce with its notice of reliance evidence of ownership of
an application that was suspended based on a potential likelihood of confusion with
Applicant’s pending application.8 We find that Opposer has established its standing.
To establish priority on a likelihood of confusion claim brought under Trademark
Act Section 2(d), a party may rely on its own prior proprietary rights in a mark
through ownership of a prior registration, actual use, or through use analogous to
trademark use, such as use in advertising brochures, trade publications, catalogues,
newspaper advertisements and Internet websites that creates a public awareness of
the designation as a trademark identifying the party as a source. See Trademark Act
§§2(d) and 45, 15 U.S.C. §§ 1052(d) and 1127. See also T.A.B. Systems v. PacTel
Teletrac, 77 F.3d 1372, 37 USPQ2d 1879 (Fed. Cir. 1996).
Inasmuch as Opposer has not pleaded ownership of any registered trademark, it
must rely on common law use of C-BYTE as a trademark or use analogous to
trademark use to prove priority. The mark must be distinctive, inherently or
otherwise, and plaintiff must show priority of use. See Otto Roth & Co. v. Universal
Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981) There is no allegation that
C-BYTE is not distinctive of Opposer’s pleaded “sales and service of computer
hardware and software, as well as related consulting and support services.”9
Applicant’s filing date is March 20, 2015. Applicant has not introduced any
testimony of any earlier use of its mark, and this is the earliest date upon which
Applicant may rely. Opposer’s application was filed on May 6, 2016, after Applicant’s

8 25 TTABVUE 10.
9 11 TTABVUE 2 (para. 3) (First Amended Notice of Opposition).
Opposition No. 91224409
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priority date, and so Opposer cannot rely on its application to establish priority.
Opposer’s founder and principal, Wanda Brink, testified that she created the Opposer
corporation “shortly after Applicant Trevor Biscope agreed to assign the
and domain names and the C-BYTE trademark” to Opposer.10 Ms. Brink
specifies that Applicant assigned “the common-law C-BYTE trademark and
associated goodwill, including any priority of use in the United States.”11
A declaration may provide evidence of priority if it is clear and uncontradicted.
See Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 316 (TTAB
1979) (oral testimony may be sufficient to establish “both prior and continuing use”
when the testimony is offered by a witness with knowledge of the facts and the
testimony is “clear, convincing, consistent, and sufficiently circumstantial to
convince” the Board of its probative value); GAF Corp. v. Anatox Analytical Services,
Inc., 192 USPQ 576, 577 (TTAB 1976) (oral testimony may establish prior use when
the testimony is offered by a witness with knowledge of the facts and the testimony
is “clear, consistent, convincing, circumstantial, and uncontradicted”).
Here, Opposer’s witness testified that Applicant had assigned to Opposer rights
in the C-BYTE mark. Ms. Brink further testified that Applicant “knew I intended to
form CCS and use the assigned rights to promote the sale of computer equipment,
software, and related services.”12 Ms. Brink does not name or specify any services in
connection with the assignment of the mark, however. While she later references how

10 24 TTABVUE 40 (paragraph 3).
11 Id.
12 24 TTABVUE 41 (paragraph 4).
Opposition No. 91224409
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she “intended” to use the mark, Ms. Brink never states in her declaration whether or
not Opposer actually has used the C-BYTE mark in connection with computer goods
or services. Her statement that Opposer has used the C-BYTE mark “to promote its
goods and services since at least as early as February 18, 2013”13 does not specify
which goods and services have been offered, sold or rendered by Opposer under the
C-BYTE mark. The accompanying exhibits to Ms. Brink’s declaration do not provide
any clarification of Opposer’s alleged use, and indeed do not evidence any use of the
C-BYTE mark. Thus, we find that the testimony of Ms. Brink is not sufficiently clear
and convincing to establish priority.14
Opposer did not plead nor did it submit any evidence demonstrating ownership or
use of the term C-BYTE as a tradename for purposes of establishing priority and
likelihood of confusion with Applicant’s mark. Having failed to establish priority,
Opposer cannot establish likelihood of confusion under Section 2(d) of the Trademark
Act.
Decision: The opposition is dismissed.

13 Id. (paragraph 9).
14 Although the web pages submitted by Opposer with its notice of reliance reference use of
the C-BYTE mark for computer services, the use post-dates Applicant’s priority date. 25
TTABVUE 40. Furthermore, although Internet materials may be submitted via notice of
reliance in accordance with Board rules, such evidence is not admissible for the truth of the
matter asserted. Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2); Safer Inc. v. OMS
Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (“the documents have little probative
value. They are admissible only to show what has been printed, not the truth of what has
been printed.”)