P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com
HEWLETT PACKARD COMPANY,
Complainant
vs.
OPENVIEW,
Attn: John Napier
Respondent.
DECISION
FILE NUMBER: FA0003000094371
The above entitled matter came on for an administrative
hearing on April 26, 2000 before the undersigned arbitrator on
the Complaint
of Hewlett Packard Company ("Complainant"), represented by Molly Buck
Richard, Esquire, Strasburger
& Price, L.L.P., 600 Congress Avenue,
Suite 2600, Austin, Texas 78701, against OpenView ("Respondent"). Upon
the written submitted record including the Complaint, Respondent's Response,
and Complainant's Rebuttal, the following
DECISION is rendered:
PROCEDURAL FINDINGS
Domain Name: Openview.com
Domain Name Registrar: Network Solutions, Inc.
Domain Name Registrant: OpenView
Date of Domain Name Registration: November 19, 1998
Date Complaint Filed: March 29, 2000
Date Response to Complaint Filed: April 11, 2000. Response
was timely filed.
After reviewing the complaint, and determining it to
be in administrative compliance, the National Arbitration Forum ("Forum")
forwarded the Complaint to the Respondent in compliance with Rule 2(a)
of ICANN's Rules for Uniform Domain
Name Dispute Resolution Policy and
the administrative proceeding was commenced pursuant to Rule 4(c). In
compliance
with Rule 4(d), the Forum immediately notified Network Solutions
that the administrative proceeding had commenced. The
Complaint, Response,
and Rebuttal to the Response were docketed and forwarded to the undersigned
arbitrator
for decision on April 19, 2000.
FINDINGS OF FACT
- Complainant is the owner of the mark OPENVIEW (U.S. Registration
Number 1,694,142), registered in connection with
computer programs
for use with network systems and use manuals supplied therewith.
The mark was
first used in interstate commerce on February 15,
1989, with the trademark application being filed on June 21, 1991.
On November 19, 1998, Respondent registered with Network Solutions
for the domain name openview.com,
which is the subject of the
complaint. The site is active and has been in use since registration,
other than being occasionally down for maintenance or for restructuring.
The purpose of the site is to provide
a variety of resources designed
to assist OpenView software users in resolving problems, reporting
bugs, suggesting product and service improvements, and serving
as a forum for discussion groups.
- The domain name is confusingly similar to the OPENVIEW mark
in which the Complainant has rights. The domain name
is merely
a combination of the Complainant's mark, OPENVIEW, and the common
commercial URL suffix,
".com."
- In July of 1998, Respondent became a "HP OPENVIEW CERTIFIED
CONSULTANT," as well as receiving authorization as an
"HP DISTRIBUTOR
AUTHORIZED RESELLER," which qualified Respondent to sell Complainant's
OpenView
products and use the "HP OPENVIEW" name in conjunction
with commercial activities.
- Respondent has maintained the website under the registered domain
name for legitimate purposes complementing his
activities involving
the sale and service of Complainant's software products. It is
apparent that
Complainant's agents and employees have been aware
of the existence of the subject's website since its inception
and have cooperated with Respondent in its development and use.
The site adds value to Complainant's
products by serving as a
resource for Complainant's and Respondent's mutual customers.
- Respondent markets Complainant's products and does not market
a competing product.
- There are no circumstances indicating that Respondent registered
the domain name primarily for the purpose of selling,
renting,
or otherwise transferring the domain name registration to the
Complainant who is the owner
of the trademark.
- There is no indication Respondent registered the domain name
in order to prevent Complainant, as owner of the trademark,
from
reflecting the mark in a corresponding domain name, nor is there
any indication that the Respondent
has engaged in a pattern of
such conduct.
- There is no indication Respondent registered the domain name
primarily (or incidently) for disrupting the business
of Complainant.
- There is no indication Respondent, by using the domain name,
is intentionally attempting to attract for commercial
gain, internet
users by creating a likelihood for confusion with the Complainant's
mark as to the
source, sponsorship, affiliation or endorsement
of the website.
- Accordingly, I find as matters of fact and pursuant to paragraph
4 of the Policy that:
- The domain name "Openview.com" is identical or confusingly similar
to Complainant's OPENVIEW mark as adopted and
used by Complainant
in connection with its computer programs;
- Complainant has failed to demonstrate that Respondent has no
substantial rights or legitimate interest with respect
to the
domain name "Openview.com.";
- It appears that Complainant acquiesed in Respondent's registration
and use of the domain, and under the circumstances
of this case,
it appears that Respondent's use is a fair use, and complementary
of Complainant's
central business purpose; and
- Complainant has not established that Respondent has registered
and used the domain name in bad faith.
CONCLUSION
The undersigned certifies that he has acted independently
and has no known conflict of interest to serve as the Arbitrator
in
this proceeding. Having been duly selected, and being impartial, the
undersigned makes the following findings
and conclusion:
- Complainant has failed to established that Respondent registered
the domain name "Openview.com" in bad faith.
DECISION
Based upon the above findings and conclusions, and pursuant
to Rule 4(i) of the ICANN's Rules for Uniform Domain Name
Dispute Resolution
Policy and the National Arbitration Forum's Supplemental Rules to ICANN's
Uniform Domain
Resolution Policy, it is decided as follows:
COMPLAINANT'S REQUEST TO TRANSFER THE DOMAIN NAME "OPENVIEW.
COM" IS HEREBY DENIED. THE SUBJECT DOMAIN NAME SHALL REMAIN
REGISTERED
TO RESPONDENT OPENVIEW.
Signed this 28th day of April, 2000, by Judge
John J. Upchurch (Retired), arbitrator.
____________________________________
Honorable John J. Upchurch
Circuit Judge (Ret.)
Arbitrator
