Cree, Inc. v The Domain Name You Have Entered Is For Sale a/k/a Entredomains, Inc.

Cree, Inc. ,
Complainant

vs.

The Domain Name You Have
Entered is For Sale a/k/a
Entredomains, Inc.
Respondent.

DOMAIN NAME DISPUTE
ADMINISTRATIVE PANEL DECISION
Forum File Number FA # 0005000094790

The above styled matter came on for an administrative hearing on May 24, 2000

before the undersigned arbitrator in accordance with ICANN'S Uniform Domain Name Dispute Resolution Policy and Rules. The arbitrator certifies that he has no conflict of interest in this matter. After due consideration of the written record as submitted, the following decision was made:

PROCEDURAL FINDINGS

Domain Name: creelighting.com, cree-lighting.com

Domain Registrant: The Domain Name You Entered Is For Sale

a/k/a Entredomains, Inc.

Domain Registrar: Network Solutions, Inc. Date: April 11, 2000

This action was commenced by the Complainant filing its Complaint with the National Arbitration Forum (The Forum) on May 8, 2000 . Thereafter, following a compliance review made in accordance with ICANN Rule 4, all necessary parties were duly notified of the commencement of the administrative proceedings. In due course the Respondent filed its Response to the Complaint.

FACTUAL BACKGROUND

PARTIES' ALLEGATIONS:

COMPLAINANT -

Cree, Inc. is a North Carolina corporation headquartered in Durham, N.C. Cree was founded in 1987 as Cree Research, Inc., and since that time has been engaged in the business of manufacturing and selling semiconductor wafers and other materials made of silicon carbide, and electronic devices made using silicon carbide wafers. Cree has used the trademark CREE and the names CREE and CREE RESEARCH since at least early 1990 in interstate commerce in connection with the sale of silicon carbide substrates and electronic devices.

Cree has filed and is the owner of two U.S. trademark applications for the trademarks CREE and CREE (with design), application serial no. 75/861,568 filed on December 1, 1999, and application serial no. 75/859,449 filed on November 26, 1999, respectively.

The CREE trademark and trade name are well-known within the semiconductor industry, as Cree is the only large-volume supplier of high quality silicon carbide wafers in the world. The CREE trademark and name are also very well known within the light emitting diode industry as Cree is one of only a handful of companies worldwide currently offering high-brightness light emitting diodes that emit light in the blue region of the spectrum.

At 8:36 a.m./ on April 11, 2000, Cree issued a press release announcing that it had signed a definitive agreement to acquire Nitres, Inc., a privately held corporation based in Santa Barbara, California. In the press release, Cree announced that as a result of the acquisition, Nitres, Inc. would become a wholly-owned subsidiary called Cree Lighting Company.

On April 11, 2000, the domain names creelighting.com and cree-lighting.com were registered by Entredomains, Inc.

On the evening of April 11, 2000, Fran Barsky, Cree's manager of investor relations received an e-mail from Bevans8576@aol.com stating that "Someone emailed me about these two domain names that I own". The e-mail stated that he owns the domain names cree-lighting.com and creelighting.com; that the domain names were for sale; and, that he had already received an offer for $9,500 for the domain names from a company in London, England. The e-mail also stated that the $9,500 offer would be accepted on April 12, 2000, "if I do not hear from anyone". The e-mail concluded "if you wish to bid any amount over this amount, you will own the domain names as my other offer has made it clear that they will not be going any higher on their bid than the $9,500 offer". The message was signed "Brian Evans".

Despite its language, the April 11^th, e-mail was not sent in response to any inquiry from Cree. To the company's knowledge, no employee or representative of Cree contacted Brian Evans prior to receiving this e-mail, or solicited an offer for these domain names from Brian Evans or anyone else.

On April 12, 2000, Cynthia Smith, Associate General Counsel for Cree, sent an e-mail reply to Brian Evans. Ms. Smith informed Mr. Evans that Cree considers the domain names creelighting.com and cree-lighting.com to be confusingly similar to Cree's trademark, and that Cree considers the registration to have been obtained in bad faith within the meaning of the ICANN Dispute Resolution Policy. In an attempt to settle the matter, in her April 12^th e-mail Ms Smith indicated that Cree would pay Mr. Evans $1,000 upon satisfactory proof that the domain names had been transferred to Cree. The proposal was to remain open until 1 p.m. Eastern Time on April 13, 2000. Ms. Smith also provided her telephone number.

Shortly after she sent the April 12^th e-mail, Ms. Smith received a phone call from a man who identified himself as "Ira Levine, an attorney from LA". Mr. Levine advised her that he represented the father of Mr. Brian Evans and that he had been asked to call her on the son's behalf in response to her e-mail. Mr. Levine informed Ms. Smith that Brian's father's company already had this trademark. Mr. Levine stated that the domain names "creelighting.com" and "cree-lighting.com" had been registered by Brian's father's company - a family business - in May 1996. He stated that the company, called "Cree Custom Lighting or something like that", which was no longer in business, had been in the custom lighting business in California. He said that the father had retired from the business and given Brian, his 19 year old son, the right to sell any intellectual property that the business had, including the domain names. Mr. Levine explained that he (Mr. Levine) maintained offices in both Los Angeles and Las Vegas, and commuted from Las Vegas.

Mr. Levine stated that Brian had merely offered to sell the domain names in response to an e-mail from someone at Cree. When Ms. Smith asked who had sent the e-mail to Brian, Mr. Levine did not know.

Ms. Smith explained that Cree had come to believe that Brian registered the name after the April 11^th press release because as of April 12^th the "whois" databases did not show any information for either domain names, which suggested that this was a new registration. Mr. Evans attributed this to the recent transfer of the names to "Entredomains". Mr. Levine stated that Brian had been trying to sell these domain names for over a year, and that he had been using an Internet company called "Greatdomains" for this purpose. He said that recently Brian had decide to use a company called "Entredomains" to market the domain names because they were more aggressive. Mr. Levine stated that there had been no interest in these domain names until recently.

Mr. Levine repeated the statement from the April 11^th, e-mail that Brian had been contacted by a company that desired to purchase the domain names. According to Mr. Levine, the company offered $9,500 as their best offer. Mr. Levine said that the company was very anxious to get these names and had sent several e-mails to Brian asking him to conclude the sale and requesting that Brian use Network Solutions "express transfer" service to switch over the domain names. Mr. Levine also stated that he had seen several of these messages. He also stated that the company had given Brian until 3:00p.m. Pacific Time on May 12^th to accept the $9,500 offer. At this point it was about 2:00p.m. Pacific Time.

Ms. Smith asked Mr. Levine for a phone number where she could reach him if needed. He was reluctant to provide a number, but finally gave a number he claimed to be his home number in Las Vegas.

After the conversation ended, Ms. Smith attempted to locate information about Cree Custom Lighting from the California Secretary of State, but was unable to find any record of the company.

Shortly thereafter, Ms. Smith called Mr. Levine back in the presence of Adam Broome, Cree's General Counsel, and told him that Cree had not been able to verify the information on Cree Custom Lighting that he had provided her and asked if he could help her to locate any corroborating information. He could not do so but assured her that he was telling the truth. Ms. Smith asked Mr. Levine for the spelling of his name, which he provided.

Shortly after that conversation ended, Cree discovered that the administrative contact for Entredomains.com is listed as B. Evans, having an address at 8635 West Sahara Avenue, Las Vegas. As of May 1, 2000, the "whois" database record for Entredomains.com had last been updated on February 12, 2000. Moreover, a search of the records of the Nevada Secretary of State revealed that Brian Evans is the president, secretary and treasurer of Entredomains, Inc.

Sometime on April 12^th, the registrations for creelighting.com and cree-lighting.com showed up on the "whois" database. Ms. Smith placed a telephone call to the telephone number listed for the administrative contact for the creelighting.com and cree-lighting.com names and was connected to an answering machine. The voice on the answering machine was identical to the voice of the person claiming to be Ira Levine.

On the evening of April 12^th, Fran Barsky again received an e-mail from Brian Evans in which he rejected Cree's offer and offered to sell the domain names for $3,000.00. Cree did not respond to this offer. The creelighting.com and cree-lighting.com websites continued to display a message that they were for sale.

On April 27, 2000, Ms. Smith and David Hall, Cree's Associate General Counsel for Intellectual Property, placed a call to the office of Ira Levine at the firm of Berkley, Gorodn, Levine, Goldstein & Garfinkel, LLP, of Las Vegas, Nevada. Ira Levine's telephone number was obtained from Martindale-Hubbell. When Mr. Levine answered it was apparent that he was not the person to whom Ms. Smith had spoken earlier in the month. This Ira Levine had never spoken to Ms. Smith before, and had never heard of Brian Evans or Entredomains. Nor was he aware of any other attorney in Nevada having the name "Ira Levine". Complainant has not been able to identify any other attorneys registered to practice in the State of Nevada having the name "Ira Levine".

Later that same day, Mr. Hall contacted Network Solutions, Inc. and spoke with a customer service representative who confirmed that the domain name registrations for cree-lighting.com and creelighting.com were new registrations as of April 11, and that the domain names had not been transferred to Entredomains from another registrant.

On May 3, 2000, Mr. Hall and Mr. Broome attempted to contact Respondent to propose a resolution before filing a complaint. Mr. Broome and Mr. Hall called "Mr. Levine's" number, but there was no answer. Mr. Broome and Mr. Hall called the number previously given as Brian Evans' home number and asked to speak to Brian Evans or Ira Levine. The person who answered identified himself as Ira Levine. Mr. Broome told "Ira Levine" that Cree was prepared to file a complaint unless the domain names were immediately transferred to Cree. "Ira Levine" told Mr. Broome that the offer was unacceptable, and the conversation ended.

On May 4, 2000, Cree received another e-mail from Brian Evans requesting that an attorney from Cree e-mail him directly about the domain names. This resulted in a number of e-mails back and forth between Complainant and Respondent, in which Evans first claimed that his attorney was in fact Ira Levine, and later claimed that Cree's attorney had spoken only to Mr. Evans and not to anyone else, and "not this "Ira" he speaks of".

Cree further alleges that the Respondent's actions were part of a systematic pattern of registering websites that incorporated the trademarks of others in bad faith. Cree's research and exhibits show that Respondent apparently operates by reviewing news releases for information about companies changing their names or adopting new names for a merged or acquired company, and then immediately registering the names or a confusingly similar variation thereof. For example:

On February 18, 2000, Johnson Worldwide Associates, Inc. announced that its

name would change to Johnson Outdoors, Inc. that same day, Respondent

registered the domain name "johnson-outdoors.com".

On March 3, 2000, Sopheon pic announced its intention to acquire Teltech Resource Network Corporation. On March 3, 2000, Respondent registered the domain name "sopheonteltech.com".

On March 6, 2000, Genzyme Corp. and Biomatrix, Inc. announced the formation of Genzyme Biosurgery. That same day, Respondent registered the domain name "genzyme-biosurgery.com".

On March 6, 2000, News Corporation and Rockwell Collins announced the formation of a joint venture to be called the In Flight Network. That same day, Respondent registered the domain name "flight-network.com".

On March 10, 2000, Area Bancshares Corporation announced that it would consolidate operations under the name "Area Bank". That same day, Respondent registered the domain name "areabankonlin.com"

On April 5, 2000, Hiking Adventures, Inc. announced in a press release that it had filed an application to change its name to IQROM Communications, Inc. That same day, Respondent registered the domain name "iqromcommunications,com".

On April 11, 2000, Chase Manhattan Corporation announced that it had offered to purchase Robert Fleming Holdings, Ltd, That same day, Respondent registered the domain name "chaseflemings.net".

Cree asks that the domain names be transferred to Complainant

RESPONDENT -

In his response, the Respondent states that the registration dates of his domain names is purely coincidental. Further , he states there are no outstanding trademarks for the domain names creelighting.com or cree-lighting.com. He further alleges that the claims set forth in the Complaint are outrageous and purely fictional statements designed to gain control of his domain names. He also states that the e-mails and references in the Complaint are untrue. In addition, Respondent states that there are over 100 companies with the word "cree" in their names who might also be interested in his domain names.

DISSCUSSION

In order to justify transfer of a domain name, Rule 4(a) of the ICANN Policy provides that a complainant must prove each of the following:

that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;and
that the respondent has no legitimate interests in respect of the domain name; and
the domain name has been registered and used in bad faith.

Complainant has proffered numerous exhibits in support of its claims, whereas the Respondent has in effect entered a general denial but tendered no documentary support. The number of exhibits does not determine the results in such matters but the total lack of contrary evidence has to be considered. After due consideration of the pleadings and exhibits, I find:

that the domain names creelighting.com and cree-lighting.com are identical or confusingly similar to the Complainant's name;
that the Respondent has no rights or legitimate interests in respect of the domain names; and
That the Respondent registered and used the domain names in bad faith as evidenced by the Respondent's pattern of conduct and the excessive price demanded.

DECISION

The Complainant having proved the three elements as required by ICANN Policy Rule 4(a), it is the decision of the arbitrator that the requested relief should be granted. Accordingly, the registrations of the domain names creelighting.com and cree-lighting.com are transferred to Cree, Inc.

May 25, 2000 Louis E. Condon, Arbitrator