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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wal-Mart Stores, Inc. v. Brad Tauer
Case No. D2000-1076
1. The Parties
The Complainant in this administrative proceeding is Wal-Mart Stores, Inc., a United States corporation with its headquarters in Bentonville, Arkansas. The Respondent is Brad Tauer, whose address is 1298 Orchard Lane, White Bear Lake, Minnesota 55110, U.S.A.
2. The Domain Name and Registrar
The domain name in dispute is as follows: "walmartrx.com". The domain name was registered by Respondent with Network Solutions, Inc. (NSI) on January 17, 2000.
3. Procedural Background
On August 16, 2000, the WIPO Arbitration and Mediation Center received from Complainant a complaint for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, ,99 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).
The complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The instant Administrative Proceeding was commenced on September 4, 2000.
Respondent did not file a Response, and a Notification of Respondent Default, dated September 25, 2000, was forwarded by WIPO to Respondent.
The decision of the Panel was due to WIPO on or before October 17, 2000.
4. Factual Background
As set forth in the Complaint, Complainant Wal-Mart owns U.S. Trademark Registration No. 1,783,039 for the mark WAL-MART, as used in connection with retail department store services. See Complaint, Annex C. The mark has been used since 1962. Complainant is the largest retailer in the world, with stores in 11 countries. There are currently 144 retail stores operated by Complainant in the U.S.
As noted above, Respondent registered the domain name in dispute on January 17, 2000. The domain name was listed for sale on the Great Domains website. Under the "Asking Price," Respondent requested potential purchasers to "Make Offer," with a minimum offer amount of $300. See Complaint, Annex F.
On June 21, 2000, Complainant's counsel sent Respondent a "cease and desist" letter. See Complaint, Annex G. On July 12th, Respondent responded to the letter via e-mail. In his letter, Respondent stated that no "bad faith" was intended in his registration of the domain name, disclaimed knowledge of any minimum bid, and offered to transfer the domain name to Complainant for the sum of $475.00, which, according to Respondent, represented the amount he invested in registering the name and associated costs.
5. Parties' Contentions
Complainant contends that the domain name in issue is identical or confusingly similar to its WAL-MART mark; that there is no evidence that Respondent has any rights or legitimate interests in the domain name; and that Respondent registered and used the domain name in "bad faith." With respect to the latter contention, Complainant asserts that Respondent is not using the domain name with any ongoing legitimate business and registered the domain name primarily for selling the domain name for an amount in excess of the registration fee
6. Discussion and Findings
The Panel has carefully weighed the evidence presented and determines that Complainant has met the requirements set forth in ¶4.a. of the Policy.
There is no question that the domain name in dispute -- walmartrx -- is confusingly similar to a mark in which Complainant has rights. The domain name incorporates, in full, the WAL-MART mark, which is the subject of a U.S. trademark registration owned by Complainant and which Complainant has used since 1962. The deletion of a hyphen and the addition of the descriptive term "rx", which is a common representation for the word "pharmacy" or "prescription", has little, if any, legal significance.
It is also clear that none of the circumstances set forth in ¶4.c. of the Policy, relating to the demonstration of rights or legitimate interests in the domain name, is applicable.
With respect to the requirement to establish "bad faith" use and registration, the Panel finds that the consideration sought by Respondent for transfer of the domain name is in "excess of [Respondent's] documented out-of-pocket costs directly related to the domain name," within the meaning of 4b(i) of the Policy. The amount sought, $475, far exceeds the domain name registration fee and Respondent did not present any documentation as to any other "out-of-pocket costs directly related to the domain name." The Panel further determines that Respondent's failure to use the domain name also supports a finding of "bad faith" registration and use under the Policy. See Telstra Corp. Ltd. v. Nuclear Marshmallows, Case No. D2000-0003 (February 18, 2000).
In view of the above, the Panel GRANTS Complainant's request for transfer to it of the domain name "walmartrx.com".
Jeffrey M. Samuels
Dated: October 16, 2000