The opinion of the court was delivered by: Kauffman, District Judge.
Presently before the Court are Plaintiff Strick Corporation's
("Plaintiff") and Defendant James B. Strickland's ("Defendant")
cross-motions for summary judgment and all responses thereto. For
the reasons set forth below, the court will grant Defendant's
motion for summary judgment and deny Plaintiff's cross-motion.
Defendant is an independent computer consultant and software
developer. In July 1995, he decided that it would be advantageous
for his business to have an easy to remember Internet domain
name.*fn1 He learned that it was too late to obtain the domain
name strickland.com, which was registered to someone else, but
that strick.com was available. (Strickland Decl. ¶ 2.) Defendant
asserts that he is commonly known by the name "Strick," a name he
has used since childhood. (Id. ¶ 1.) Consequently, Defendant
registered the domain name strick.com and began using it to
communicate with his clients. (Id. ¶ 2.)
Eight months later, in March 1996, Plaintiff, a manufacturer of
transportation equipment with a product line including dry
freight semi-trailers, container chassis, and converter dollies,
contacted Defendant, seeking to obtain registration of the
strick.com domain name.*fn2 (Am.Compl. ¶ 9; Decl. of Michael F.
Snyder in Supp. of Pl.'s Cross-Mot. for Summ.J. ("Snyder Decl.")
Ex. I.) The parties were unable to resolve the matter amicably,
and in August
1996, Plaintiff asked Network Solutions, Incorporated
("NSI")*fn3 to place Defendant's domain name "on hold," making
it unavailable for use by any party. In January 1997, NSI placed
a "hold" on Defendant's domain name.*fn4
The "hold" on strick.com continued for the next three years.
Then, in January 2000, NSI announced that due to a policy change,
it would restore domain names that were "on hold" unless the
original complainant filed a lawsuit against the domain name
owner or brought an ICANN challenge by a particular date. In May
2000, Plaintiff filed an ICANN challenge, selecting the National
Arbitration Forum ("NAF") to resolve the dispute. The
three-person NAF panel ordered that the domain name "strick.com"
be released from the "hold" with full use restored to Defendant.
Strick Corp. v. James B. Strickland, Jr., FA 94801
(Nat.Arb.Forum, July 3, 2000).*fn5
In June 2000, Plaintiff filed the instant Complaint and in July
2000, filed an Amended Complaint. On November 22, 2000, Defendant
filed his motion for summary judgment and on January 8, 2001,
Plaintiff filed its cross-motion. By Order dated June 26, 2001,
the Court dismissed a number of counts in the Amended Complaint.
The cross-motions seek summary judgment as to Plaintiff's
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
A factual dispute is material only if it might affect the outcome
of the suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Whether a genuine issue of material fact is presented will be
determined by asking if "a reasonable jury could return a verdict
for the non-moving party." Id. In considering a motion for
summary judgment, "[i]nferences should be drawn in the light most
favorable to the non-moving party, and where the non-moving
party's evidence contradicts the movant's, then the non-movant's
must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citation omitted).
Plaintiff's and Defendant's cross-motions seek summary judgment
as to the remaining claims in the Amended Complaint: Count II,
entitled "Federal Dilution;" Count V, insofar as it relates to
state law dilution; and Count VI, "Unfair Competition." The Court
will first address the unfair competition claim. Then, it will
address the federal and state dilution claims.*fn6
Count VI of the Amended Complaint is Plaintiff's claim of
common law unfair competition. Under the common law, as under
federal law,*fn7 the essence of an unfair competition claim is
the likelihood of confusion. Am. Fid. & Liberty Ins. Co. v.
American Fidelity Group, 2000 WL 1385899, at *1 n. 4 & *13
(citations omitted). In determining the likelihood of confusion
in the market place, the court looks at a number of factors,
(1) the degree of similarity between the owner's mark
and the alleged infringing mark;
(2) the strength of the owner's mark;
(3) the price of the goods and other factors
indicative of the care and attention expected of