P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com


HEWLETT PACKARD COMPANY,

Complainant

vs.

NAPIER,

Respondent.

DECISION
FILE NUMBER: FA0003000094368

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 Napier ("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.org

Domain Name Registrar: Network Solutions, Inc.

Domain Name Registrant: Napier

Date of Domain Name Registration: September 8, 1999

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

    1. 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 September 8, 1999, Respondent registered with Network Solutions for the domain name openview.org, 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.
    2. 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, ".org."
    3. 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.
    4. 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.
    5. Respondent markets Complainant’s products and does not market a competing product.
    6. 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.
    7. 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.
    8. There is no indication Respondent registered the domain name primarily (or incidently) for disrupting the business of Complainant.
    9. 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.
    10. Accordingly, I find as matters of fact and pursuant to paragraph 4 of the Policy that:
    1. The domain name "Openview.org" is identical or confusingly similar to Complainant’s OPENVIEW mark as adopted and used by Complainant in connection with its computer programs;
    2. Complainant has failed to demonstrate that Respondent has no substantial rights or legitimate interest with respect to the domain name "Openview.org.";
    3. 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
    4. 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:

    1. Complainant has failed to established that Respondent registered the domain name "Openview.org" 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. ORG" IS HEREBY DENIED. THE SUBJECT DOMAIN NAME SHALL REMAIN REGISTERED TO RESPONDENT NAPIER.

Signed this 28th day of April, 2000, by Judge John J. Upchurch (Retired), arbitrator.

____________________________________

Honorable John J. Upchurch

Circuit Judge (Ret.)

Arbitrator