United States District Court, D. Colorado
MOUNTAIN SKI TRIPS, LLC, a Colorado Limited Liability Company, Plaintiffs,
TYLER J. BOTSFORD, VR MARKETERS, and GREEN MONKEY MARKETING LLC, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on that portion of plaintiff's
Motion for Temporary Restraining Order and Preliminary
Injunction [Docket No. 2] that requests issuance of a
temporary restraining order (”TRO”). The Court
has jurisdiction pursuant to 28 U.S.C. § 1331 and 28
U.S.C. § 1367.
Mountain Ski Trips, LLC is a vacation rental marketing
company. On December 7, 2017, plaintiff filed a complaint
alleging eight claims for relief. Docket No. 1. In its fifth
claim for relief, civil theft, plaintiff alleges that it owns
the domain name www.breckenridgelodging.com
(“the domain”), but that defendant Tyler J.
Botsford, a former co-owner of plaintiff, has taken control
of the domain and will not return it. Docket No. 1 at 14,
¶¶ 87, 88. Plaintiff seeks a TRO only against Mr.
Botsford, asking the Court to order him to restore the domain
to how it was functioning at noon on November 15,
and to bar him from selling or transferring control of the
domain. Docket No. 2 at 10. On December 12, 2017, the Court
held a hearing on that portion of the motion seeking a
temporary restraining order. Docket No. 21. Mr. Botsford
appeared pro se.
succeed on a motion for temporary restraining order, the
moving party must show (1) a likelihood of success on the
merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3)
that the balance of equities tips in the movant's favor;
and (4) that the injunction is in the public interest.
RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208
(10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)); see
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)).
“[B]ecause a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and
unequivocal.” Beltronics USA, Inc. v. Midwest
Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th
Cir. 2009) (quoting Greater Yellowstone Coalition v.
Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal
quotation marks omitted). Granting such “drastic
relief, ” United States ex rel. Citizen Band
Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt.
Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.
1989), “is the exception rather than the rule.”
GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.
hearing, the Court made findings of fact. See Docket
No. 21 at 2. Those findings are incorporated herein by
reference. A person commits civil theft under Colorado law
when “he or she ‘knowingly obtains, retains, or
exercises control over anything of value of another without
authorization or by threat or deception, ' and acts
intentionally or knowingly in ways that deprive the other
person of the property permanently.” Van Rees v.
Unleaded Software, Inc., 373 P.3d 603, 608 (Colo. 2016)
(quoting Colo. Rev. Stat. § 18-4-401(1)(a)-(d)). The
property owner must show that the alleged thief had the
“‘specific intent to permanently deprive the
owner of the benefit of property.'” Id.
(quoting Itin v. Ungar, 17 P.3d 129, 134 (Colo.
domain name is property within the meaning of the civil theft
statute. See In re Paige, 685 F.3d 1160, 1195 (10th
Cir. 2012) (holding that a domain name was “plainly
property”); Kremen v. Cohen, 337 F.3d 1024,
1030 (9th Cir. 2003) (holding that domain names are
intangible property). At the hearing, the Court found that
plaintiff demonstrated a likelihood of success on the merits
of the civil theft claim. Plaintiff introduced evidence that
Mr. Botsford exercised control over the domain name by
redirecting the domain name such that plaintiff's website
no longer appeared at the domain. Additionally, based on the
emails exchanged between Mr. Botsford and Drew Ewing, a
current owner of plaintiff, and Mr. Botsford's admission
that he has proposed selling the domain since September 2017,
plaintiff showed that Mr. Botsford acted with the specific
intent to permanently deprive plaintiff of the domain.
Court also found that plaintiff demonstrated that, in the
absence of injunctive relief, it will suffer irreparable
harm. At the TRO hearing, plaintiff presented the expert
testimony of Michael Archer, the founder of an internet
marketing consultancy, that internet search engines rank
domains based on various factors and that higher ranked
domains are more prominently displayed and receive more
visitor traffic. Mr. Archer testified that the domain will
gradually lose ranking value the longer it remains out of
operation and could lose all acquired ranking value if left
out of operation for many months. At that point, the
domain's ranking value would be beyond repair and could
not be restored by bringing the website back.
Court found that the balance of equities tips in
plaintiff's favor. Plaintiff has demonstrated that it
will suffer harm should it not be able to continuously
maintain its website on the domain. Mr. Botsford, by
contrast, did not present evidence of harm he would suffer if
he were required to restore plaintiff's ability to
display its website on the domain.
the Court also found that the TRO is in the public interest.
The public has a substantial interest in enforcing private
property rights, including rights in intangible property.
to Fed.R.Civ.P. 65(c), the Court required that plaintiff post
a $5, 000.00 bond.
foregoing reasons and those stated in the Court's oral
ruling, it is
that, pursuant to Fed.R.Civ.P. 65, the portion of
plaintiff's Motion for Temporary Restraining Order and
Preliminary Injunction [Docket No. 2] seeking a temporary
restraining order is GRANTED. It is further
that defendant ...