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WIPO Arbitration and Mediation Center

The Complainant is Micron Technology, Inc., a Delaware Corporation with its principal place of business in Boise, Idaho, USA, represented by Hunton & Williams.

The Respondent is Null International Research Center, an entity doing business in Arizona, USA, represented by Weinberg Cummerford Legal Group.

The domain name at issue is <crucialtechnology.com>.

The domain name is registered with CORE Internet Council of Registrars.

Complainant submitted its Complaint to the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") under the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy") via e-mail on April 27, 2001, and hardcopy on May 1, 2001. The Center acknowledged receipt of the Complaint on April 30, 2001. Complainant amended its Complaint to use Respondent’s correct name via e-mail and facsimile copy on May 3, 2001. On May 4, 2001, the Center formally commenced this proceeding.

Respondent submitted its Response via e-mail on May 26, 2001, and hardcopy on May 28, 2001. The Center acknowledged receipt of the Response on May 28, 2001. Both Complainant and Respondent (the "Parties") elected to decide this dispute by a single-member Administrative Panel. On June 1, 2001, the Center notified the Parties that David H. Bernstein had been appointed as the sole panelist in this matter.

Complainant, a Fortune 500 company, is a manufacturer and provider of computer related goods and services and has sales averaging several billion dollars per year. It owns trademarks for "Crucial Technology" (U.S. Trademark Reg. No. 2,316,486) and "Crucial Technology and Design" (European Community Trademark Reg. No. 673053, U.S. Trademark Reg. No. 2,331,855) (collectively the "Crucial Marks"). Product sales under the Crucial Marks for personal computer memory upgrades are annually over $150 million.

Respondent registers and offers for sale numerous domain names. Respondent also offers consulting services for product placement and branding.

Complainant claims that the domain name is functionally identical to the Crucial Marks. Complainant argues that it has invested significant amounts of capital in advertising the Crucial Marks, which has resulted in substantial consumer goodwill. Complainant further claims that any consumer confusion as to Complainant’s connection with the website will create false impressions that violate its trademark rights under federal and international law.

Furthermore, Complainant claims that Respondent has no right or legitimate interest in the domain name. In particular, Complainant alleges that Respondent has not engaged in business under the domain name for a legitimate non-commercial or fair use.

Complainant also alleges that Respondent has registered and used the domain name in bad faith. Specifically, Complainant notes that Respondent does not have an active website at the domain name in question and is offering it for sale. As a result, Complainant alleges that Respondent acquired the domain name exclusively to sell it for profit. Such acts, the Complainant pleads, violate the United States Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). The Complainant, therefore, requests that the domain name be transferred as provided by Paragraph 4(i) of the Policy.

In its defense, Respondent claims that it has registered the domain name in good faith. Respondent registered the domain name on October 5, 1999. However, Respondent notes that Complainant received its registration for the Crucial Technology mark on February 8, 2000. Respondent, therefore, claims it had no knowledge of Complainants’ use of the mark when it registered the domain name. Moreover, Respondent claims it only learned of the Crucial Marks upon receipt of a October 25, 2000, letter from Complainant requesting transfer of the domain name. Given such events, Respondent argues that it did not register the domain name to confuse Complainant’s customers and thereby divert business in bad faith.

Moreover, Respondent claims that it engages in a legitimate business and is therefore not a cybersquatter. In particular, Respondent asserts that by registering generic domain names it intentionally sought to avoid brand and trademark conflicts.

Under Paragraph 4(a) of the Policy, Complainant must establish each of the following elements in order to state a claim for transfer of a domain name:

(1) that the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) that Respondent has no rights or legitimate interests in respect of the domain name; and

(3) that Respondent has registered and used the domain name in bad faith.

The Panel finds, and Respondent does not dispute, that the domain name is identical to Complainant’s trademarks.

Complainant alleges that Respondent intends to profit from registering the domain name. Respondent replies that its sale of domain names is a bona fide business practice in domain name speculation. See Allocation Network GmbH v. Steve Gregory, WIPO Case No. D2000-0016 (March 24, 2000).

The Panel agrees with the Respondent that domain name speculation can be a legitimate interest if the Respondent was not aware of Complainant’s trademark rights. See id.; Audiopoint, Inc. v. eCorp., WIPO Case No. D2001-0509 (June 14, 2001); General Machine Prods. Co. v. Prime Domains, No. FA0001000092531 (NAF March 16, 2000). Here, Complainant has proffered no evidence that Respondent likely was aware of its trademark rights at the time it registered the domain name or otherwise was targeting Complainant or its mark. This conclusion is bolstered by the fact that Respondent has registered other, similar domain names such as <populartechnology.com>, <thirdgenwireless.com>, <biotechrevolution.com>, <seniorhealthissues.com> and <bravenewbiotech.com>. See Complaint, Exhibit E. Accordingly, the Panel finds, on this admittedly truncated record, that Complainant has failed to show that Respondent lacks a legitimate interest.

Complainant alleges that Respondent’s failure to post an active website at the domain name constitutes bad faith. In support of this claim, Complainant cites Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000), which found that failure to develop a website associated with a domain name could constitute bad faith use.

It is certainly true that, under appropriate circumstances, nonuse of a domain name can establish bad faith. In this case, however, Respondent certified that it was not aware of Complainant’s unregistered marks at the time it registered the domain name at issue. Complainant has provided no evidence of fame as of October 1999, indicating that Respondent was likely to know of its unregistered marks at that time. Instead, the domain name was registered as part of Respondent’s complement of descriptive and suggestive technology-related domain names. Thus, unlike the situation in the Telstra case, the Panel does not infer that the domain name was registered and is being held for "ransom".

The Panel disagrees, though, with Respondent’s assertion that it could not be engaged in cybersquatting because it registered the domain name before Complainant’s mark was registered. That is not the relevant date given that Complainant claims first use of its mark (establishing common law rights) in 1996, and applied to register its mark (thus fixing its priority date) in January 1999, both dates that predate the domain name registration. Had Respondent had actual knowledge of Complainant’s rights, this decision likely would have reached a different conclusion, even if <crucialtechnology.com> fit in a pattern of speculation in suggestive and descriptive domain names. Because of an absence of such evidence, the Panel determines that Complainant has not shown bad faith registration. Having registered without bad faith, Respondent’s later offer to sell the domain name is not sufficient to satisfy this element of the policy. Cf. e-Duction, Inc. v. John Zuccarini, Case No. WIPO D2000-1369 (October 23, 2000), (when respondent registered the domain name before complainant’s mark existed, Panel could not find bad faith registration and use).

It is worth noting that Respondent’s ability to exploit the domain name may be limited given Complainant’s trademark registrations for CRUCIAL TECHNOLOGY for computer components. Respondent, or any purchaser of the domain name, should ensure that it does not use the domain name in a way that gives rise to confusion, lest the use of the domain name create infringement under state or national law. This decision, like all UDRP decisions, is without prejudice to the filing of a new UDRP complaint should a subsequent purchaser acquire and use the domain name in bad faith, such as to divert consumers for commercial gain by creating a likelihood of confusion as to the source of its goods or services.

The Panel finds that Complainant has failed to uphold its burden of proof under Paragraph 4 of the Policy. Complainant’s request for transfer of the domain name is denied.

David H. Bernstein
Sole Panelist

Dated: June 20, 2001