WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bang & Olufsen America, Inc. v. BeoW
Case No. D2001-0159
1. The Parties
The Complainant in this administrative proceeding is Bang & Olufsen America, Inc. whose principal place of business is located at 1200 Business Center Drive, Suite 100, Mt. Prospect, Illinois, 60056, USA. The Respondent in this case is BeoW whose address is 351 Old Newport Blvd., Suite 470, Newport Beach, CA 92663, USA.
2. The Domain Name and Registrar
The domain name at issue is "beow" which is registered with Network Solutions in Herndon, Virginia, USA.
3. Procedural History
A Complaint was received by the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on January 1, 2001.
On February 5, 2001, a Verification Response was received from Network Solutions which served to: (1) confirm that Network Solutions was in receipt of the notification of the domain name dispute; (2) confirm that Network Solutions is the registrar of the domain name; (3) confirm that Respondent is the current Registrant of the domain name; and (4) provide the full contact details (i.e., postal address(es), telephone number(s), e-mail address(es)) available in the registrar�s WHOIS database for the Registrant of the disputed domain name, the technical contact, and the administrative contact.
On February 6, 2001, a Formal Requirements Compliance review was completed by the assigned WIPO Center Case Administrator. The WIPO Center determined that the Complaint is in formal compliance with the requirements of the Uniform Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, as approved by ICANN on October 24, 1999, (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy, in effect as of December 1, 1999, (the "Supplemental Rules"). The required fees for a three member Panel were paid by the Complainant on time and in the required amount.
A Notification of Complaint and Commencement of Administrative Proceedings was sent by the WIPO Center to the Complainant (email) and Respondent (post/courier and email), dated February 6, 2001. The Notification set a deadline of February 25, 2001, by which the Respondent could make a Response to the Complaint. Respondent did not submit a Response by that date. A Notification of Respondent Default was sent by the WIPO Center to Respondent (post/courier and email) and to Complainant (email) on February 27, 2001. Respondent submitted a Response on March 7, 2001. The WIPO Center notified Respondent that because the Response was not submitted in accordance with the deadline, it would be up to the Panel to determine whether to consider the Response. Complainant submitted a Rebuttal to Respondent�s Response on March 9, 2001.
On March 15, 2001, the WIPO Center sent to the parties a Notification of Appointment of Administrative Panel. Taking into consideration the panelist nominations made by the parties, the WIPO Center appointed Paul E. Mason and Mark Van Buren Partridge to serve as Panelists and Roderick M. Thompson to serve as Presiding Panelist. All three Panelists submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the WIPO Center. The Projected Decision Date, as determined by the WIPO Center and transmitted to the parties on March 15, 2001, was March 29, 2001.
4. Factual Background
Bang & Olufsen America, Inc., Complainant, is a subsidiary of Bang & Olufsen audiovisual a/s, which is a subsidiary of Bang & Olufsen a/s (together "B&O"). B&O is in the business of manufacturing, selling, distributing and servicing consumer electronic products, and has done so since 1925.
Complainant has provided evidence that B&O has registered various U.S. trademarks that begin with the term "beo". These trademarks include BEOCENTER, BEOCOM, BEOCORD, BEOGRAM, BEOLAB, BEOLINK, BEOLIT, BEOLOGIC, BEOMASTER, BEOSOUND, BEOVISION, BEOVOX. Complainant does not, however, claim trademark rights to the term "beoworld".
Respondent, Beow, is the current Registrant of the domain name "beow". Respondent is not an authorized B&O dealer, but instead obtains B&O products through alternative channels and offers these products for sale on its website.
5. Parties� Contentions
A. Complainant
Complainant asserts that the domain name "beow" is confusingly similar to B&O�s trademarks. Although the domain name is not identical to any of the B&O trademarks, Complainant claims that the "beo" name, which is included in the disputed domain name, is strongly associated with B&O. In support of its contention that the domain name is confusingly similar to its trademarks Complainant asserts that: Respondent offers B&O products for sale in the same geographic market as B&O and to the same customers as B&O; Respondent states on its website that the products sold are "factory" despite the fact that the products are not sold factory direct; Respondent has not taken any action to revise such terms despite Respondent�s offer to do so; and that Respondent�s website does not contain effective disclaimers as to its lack of affiliation with B&O.
Complainant asserts that Respondent is not an authorized dealer of B&O, is not a licensee of B&O, and is not authorized by B&O to market, sell or service B&O products. Complainant claims, therefore, that Respondent has no rights or legitimate interest in the disputed domain name.
Complainant alleges that Respondent is using the domain name to attract users by creating a likelihood of confusion as to source, sponsorship, affiliation, or endorsement of Respondent�s web site. According to Complainant, Respondent�s use of the domain name was undertaken to trade off the reputation and goodwill of B&O. Consequently, Complainant claims that Respondent registered and is using the domain name "beow" in bad faith.
B. Respondent
Respondent disputes Complainants assertions. Respondent claims that the real purpose of the Complain
