Case No. IP-2019-000188

30. The following are the documents on which Mr Hill relied in closing as evidence of the Defendants’ use of “cryptoback” before the Filing Date. Email campaigns 31.In paragraph 38 of his witness statement Mr Manuel gave evidence about email campaigns. This was substantially corrected by an email from the Defendants’ solicitors sent at 18:35 on the day before the trial. 32.In the corrected version Mr Manuel asserted that an email campaign was conducted by Global and its licensees during January and February 2018 which was sent to more than 700,000 email addresses, of which 114,667 were specifically marked as UK users in what he called “the Infusionsoft software”. To support the figure of 114,667 Mr Manuel exhibited a three page document with the number 114,667 on the first page but with no explanation of what the number meant. It listed just 20 names marked “Country: United Kingdom”. There was no record in the document of anything having been sent to these 20 individuals. Mr Manuel also exhibited an 8 page document headed “Email Broadcasts”. It provided no indication as to whom any of the broadcasts were sent. None of the emails referred to by Mr Manuel in this first part of paragraph 38 was exhibited. 33.In the same paragraph Mr Manuel went on to say that between 1 November 2017 and the Filing Date the email campaigns were primarily focussed on building recognition of the new cryptocurrency CCRB. He referred to two emails, one dated 12 January 2018 and the other 12 February 2018 which, he said, expressly referred to the cryptoback service. He asserted that the first was sent to 22,806 email addresses and was opened 5,533 times and clicked 740 times (by those who wished to make a purchase from an affiliate retailer). The second, he said, was sent to 382,719 email addresses and was opened 22,414 times and clicked 1,206 times. Mr Manuel also claimed that 57,650 UK recipients received one or both the emails and inferred that a proportion of them would have opened the emails and a smaller proportion would have clicked the emails. There was no documentary proof of any of this – documents exhibited in the original version of paragraph 38 purporting to support Mr Manuel’s numbers were struck out in the amended version, I think for good reason. Further, as Mr Norris pointed out, it was to be expected that if anyone clicked on either of the emails they would have given their address. The Defendants must have a record of those addresses, in particular UK addresses. No such record was provided in either version of paragraph 38. 34.In the original version of Mr Manuel’s paragraph 38, having referred to the emails of 12 January 2018 and 12 February 2018 Mr Manuel cited a reference to two pages in the trial bundle which shows one undated email. That reference was struck through in the amended version of Mr Manuel’s paragraph 38 and I assume that he no longer relies on those two pages of his exhibit as establishing anything. It is not possible to know how the word “cryptoback” was presented in any of the emails Mr Manuel refers to in his paragraph 38 and therefore how it would probably have been interpreted by recipients. “Shopping is Mining” Article 35.Mr Manuel referred to a web article published by Global entitled “Shopping isMining – How CCRB is redefining the cryptocurrency model with ‘Cryptoback’”. He said it was published on 12 January 2018 and on the next day he shared the article on his LinkedIn page which has over 10,000 followers. The article was picked up by a cryptocurrency website and republished on 13 March 2018. 36.A copy of the article was in the evidence. It refers to traditional cryptocurrency mining and says: “This is where CCRB’s Shopping is Mining concept is so radically different.” 37.It has a section headed “How ‘CryptoBack’ Works”. It explains the difference from traditional cashback models: “But of course the key difference is that we have set up a reward program where you receive 25% of the value of whatever you purchase on the affiliate site in CCRB cryptocurrency, according to the High Internet Value – and this is what we like to term ‘Cryptoback’ – the rewards for the consumer are that they get immediate and risk-free entry into a sure-fire way to mine cryptocurrency, without any equipment or technical knowledge required whatsoever – they simply shop and mine.” 38.Notwithstanding the upper case C, it seems to me that a reasonable reader would on balance probably interpret this to mean that “Cryptoback” was a term for a new type of cashback service, now being offered where the cashback rewards are paid in CCRB cryptocurrency. I think it is safe to assume that some people read the article before the Filing Date but there is no way knowing how many, if any, were in the UK. CCRB FAQs 39.The Defendants served a bundle of cross-examination documents on the opposing parties at 12:53 on the day before the trial. For the most part Wirex and the Defendants to the Counterclaim did not object. However, objection was taken at trial, and more strenuously by an email to the court on the day after the trial, with regard to a page taken from an archive of one of the Defendants’ websites, headed “CCRB FAQ’s”. The Defendants had obtained this using the Wayback machine. Pursuant to CPR 63.23(2) such a document was admissible only in exceptional circumstances and none were suggested by the Defendants. On that ground alone I find that the document is inadmissible. 40.However I did look at it and it was discussed. The heading suggests that it was taken from an archive of the website dated 10 April 2018. It consists overwhelmingly of questions and answers about the Defendants’ cryptocurrency CCRB. There is, however, a section headed “Cryptoback” which was partially obscured. It appears to explain that cryptoback is a cashback system using cryptocurrency. Had this document been admissible, I would not have regarded it as providing sufficient evidence that the word would be seen as anything more than a word for a new type of service. Further, assuming these FAQs were read by some people, there is no way of knowing how many paid attention to the Cryptoback section and of those, how many were in the UK. Account summaries 41.The Amended Defence and Counterclaim, signed by Mr Manuel, contained the following paragraph: “8. Materials evidencing the foregoing assertions [of use of “cryptoback”] are annexed hereto at Annex 1. This collection of materials is not comprehensive and further materials will be adduced in evidence.” 42.Annex 1 has 62 pages of documents that were not further explained in the Amended Defence and Counterclaim or in Mr Manuel’s witness statement. The pages included what Mr Hill told me were 50 samples of summaries of accounts held by customers, possibly customers of Global or Bee-One. Mr Manuel had not so identified them. They were dated 10 September 2019 (or 9 October 2019 possibly) and were difficult to read. Mr Hill submitted that it was possible to make out cryptoback payments in dollars on dates preceding the Filing Date and the name of the trader from whom the account holder had made a purchase, such as Asda and Lidl. The payments made by the customer are recorded and some of them are shown as having been paid in sterling. Mr Hill submitted that those customers must have been in the UK. Mr Manuel did not say that they were. 43.Assuming Mr Hill was right, these account summaries merely establish that in the autumn of 2019 the payments were recorded under a column marked “Cryptoback $”. They prove nothing about whether and if so how, the word “cryptoback” was presented to the customers at the relevant time. Still less do they show that such use would have been perceived by the customers as a badge of origin. Global Invoice to Bee-One 44. I was shown an invoice dated 9 April 2018 from Global to Bee-One recording cryptoback sales, using that term. This shows nothing about how the term was presented to the public. Shop & Mine 45.Mr Hill took me to a webpage headed “CCRB – CryptoCarbon – Shop & Mine”. On it are names and logos of various traders. I was told that the recipient of this webpage would click on the name or logo of the preferred trader. I was then taken to a page which the viewer would see if they clicked on “Active Wills”. Neither page is dated. There were no recorded numbers for viewers of the page or how many of those were in the UK. 46.The first page was not explained in Mr Manuel’s evidence. The Active Wills page was identified by him and it included links marked “Get Cryptoback” and a section headed “How Does Cryptoback work?”. The page is headed with the CCRB logo and CCRB in fancy script. In my view, the use of the word cryptoback on the Active Wills page was, on balance, probably taken to have been a name for a new type of service, here offered using CCRB cryptocurrency. A different word for the Defendants’ cryptocurrency cashback 47.“Cryptoback” was not the only term used by the Defendants to describe their cryptocurrency cashback system. In the evidence there were archive pages from the CCRB website nominally dated 23 April 2019. It refers to the new CCRB reward system and states: “The platform enables users to mine cryptocurrency by receiving ‘CcrbBack’, a unique alternative to cashback programs where users receive cryptocurrency rewards rather than Fiat payments.” 48.This implies that from some point before 23 April 2019 the Defendants had been using an alternative term to describe their cryptocurrency cashback service, namely “CcrbBack”. 49.The pages refer to a new version of the CCRB platform: “The new version of the platform is scheduled to be live on their website on 1st May 2018 …” 50.It appears that these pages must have appeared online before 1st May 2018. If so, the Defendants’ use of an alternative term for their cryptocurrency cashback service, CcrbBack, will have started before the Filing Date. 51.If, as seems likely, the Defendants were using both “cryptoback” and “CcrbBack” in relation to their new cashback service before the Filing Date, of the two “CcrbBack” is the more likely to have been perceived as referring to the service where payment is in CCRB, which would tend to relegate “cryptoback” to the status of a generic term for the new service.