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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Walgreen Co. v. Mike Lowell
Case No. D2002-0274
1. The Parties
Complainant is Walgreen Co., an Illinois corporation with its principal place of business located at 200 Wilmot Road, Deerfield, Illinois 60015, United States of America.
Respondent is Mike Lowell, residing in Sma Hill, Pennsylvania.
2. The Domain Name and Registrar
The domain name at issue is <walgreeens.com>, registered with eNom Inc., 16771 NE 80th Street, #100, Redmond, WA 98052 (the "Registrar").
3. Procedural History
The Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") and was received by the Center in electronic form on March 21, 2002. A hardcopy was received by the Center on March 25, 2002. Payment of the required single-member Panel fee was made by Complainant.
The Center reviewed the Complaint for compliance with the requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"). On March 28, 2002, the Center transmitted to the Registrar a request for verification of the details of the domain name registration. On March 29, 2002, the Registrar confirmed the details, including the domain name <walgreeens.com> was registered through eNom Inc., and that Mike Lowell is the current registrant of the domain name. The contents of the WHOIS database relating to the domain name was included in the verification.
The Center reviewed the Complaint and determined that it satisfies the formal requirements of the Policy, the Rules for the Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
On April 5, 2002, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent together with copies of the Complaint, with a copy to the Complainant. This Notification was sent in accordance with the methods required by paragraph 2(a) of the Rules.
In the Notification issued by the Center on April 5, 2002, Respondent was allowed 20 calendar days, or until April 25, 2002, in which to respond to the Complaint. On April 26, 2002, the Center, having received no response from Respondent, issued a Notification of Respondent Default.
On May 9, 2002, having received the Statement of Acceptance and Declaration of Impartiality and Independence of Jeffrey H. Kaufman, the Center formally notified the parties of the Notification of Appointment of Administrative Panel and projected Decision Date, and Transmission of Case File to Administrative Panel, appointing the undersigned Panelist, Jeffrey H. Kaufman, as the Sole Panelist. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.
4. Factual Background
Complainant owns the following U.S. federal trademark and service mark registrations:
U.S. Reg. No. 2,077,524 for WALGREENS;
U.S. Reg. No. 2,096,551 for WALGREENS;
U.S. Reg. No. 1,839,087 for WALGREENS DRUG STORES (& Design);
U.S. Reg. No. 1,777,461 for WALGREENS HEALTHCARE PLUS;
U.S. Reg. No. 1,057,249 for WALGREENS;
U.S. Reg. No. 2,292,545 for WALGREENS (& Design); and
U.S. Reg. No. 2,113,779 for 1-800-WALGREENS.
The earliest registration, No. 1,057,249, was registered in 1977.
5. Parties’ Contentions
Complainant asserts that it has continuously used its WALGREENS name and mark since 1901, in connection with its retail drug stores, pharmacy services, and line of products sold at its retail stores ranging from personal care items to food products.
Complainant now operates over 3700 stores throughout the country and is the largest retail pharmacy chain in the world with annual sales exceeding $24 billion.
Complainant has invested billions of dollars in advertising and promoting its WALGREENS name and mark. Complainant has long advertised in newspapers and on television and radio commercials. Complainant spends hundreds of millions of dollars annually in advertising its WALGREENS products and services.
Complainant maintains an active web site located at "www.walgreens.com." Complainant takes in excess of 13,000 prescription orders per day online at its web site. Over the past two years, Complainant has made tens of millions of dollars of sales originating through electronic transactions at Complainant's "www.walgreens.com" web site.
As a result of the success of Complainant's business and its long and extensive use and advertising, Complainant's WALGREENS mark is extremely well known and famous among the general public.
Respondent's domain name is a misspelling of Complainant's WALGREENS name and mark, and therefore is legally identical or confusingly similar to Complainant's name and mark.
Respondent's web site features extremely offensive content concerning Jesus Christ. For example, the site invites women to "Bathe with Jesus" and "Date Jesus." Respondent also sells clothing items, a coffee mug, and a tote bag, which display images of a bearded "Jesus" or the phrase "JESUS HATES YOU."
Respondent has no rights or legitimate interests in the <walgreeens.com> domain name, as it has no product, service, or business operated or provided under the designation "Walgreeens." Respondent owns no federal registration of the designation and is otherwise not known or recognized in connection with the designation. Respondent has not made a bona fide use of the WALGREEENS mark on its web site to identify any goods or services. Respondent's web site displayed in connection with the domain name only concerns products or services connected to "Jesus."
Respondent's lack of legitimate interest in the domain name is illustrated by the fact that it has changed the web site connected to the domain name. Initially, the domain name was associated with the "pillstore.com" web site, an online pharmacy in competition with Complainant. After Complainant first contacted Respondent, Respondent changed the connection.
Moreover, Respondent can have no rights or legitimate interests in the <walgreeens.com> domain name because it is legally identical to Complainant's famous WALGREENS name and mark and <walgreens.com> domain name.
Respondent acquired and has used the <walgreeens.com> domain name to attract for financial gain Internet users to Respondent's web site by creating a likelihood of confusion with Complainant's mark and domain name. The only reason Respondent possibly could have to use the misspelling of Complainant's name and mark as a domain name is to take advantage of Complainant's reputation and good will. Respondent is using the disputed domain name solely to attract Internet users to his site.
Respondent also acquired and has used the domain name for the purpose of selling the domain name registration to Complainant in excess of Respondent's out-of-pocket costs directly related to the domain name. The original registrant of the name was identified as "Domains for Sale Inc.," of 5444 Arlington Ave., Bronx, New York 10471. The contact was John Barry at the same address. Domains for Sale Inc. is in the business of selling domain names. In addition, when contacted by Complainant, Mr. Barry offered to transfer the domain name to Complainant and perform unspecified domain name investigations for $1000. When Complainant refused this offer, the names in the WHOIS database of the registrant and contacts changed. It is submitted that the current names of record are fictitious and were invented by the original registrant.
The multiple identities used in connection with the registrant information for the <walgreeens.com> domain name and the obviously fictitious information provided (such as the "123456789" telephone number and the "email@example.com" email address) further show bad faith intent.
Respondent did not submit a response to the Complaint.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements:
1) the domain name is identical or confusingly similar to a trademark in which the Complainant has rights;
2) the Respondent has no rights or legitimate interest in respect of the domain name; and
3) the domain name has been registered and is being used in bad faith.
Rule 14(b) of the Rules provides that, when a Respondent fails to file a Response, the Panel may draw such inferences as it considers appropriate.
Identical and/or Confusingly Similar
The domain name <walgreeens.com>, which differs from Complainant’s WALGREENS mark only by the addition of an extra "e", is confusingly similar to a mark in which Complainant has rights.
Rights or Legitimate Interests
From the evidence submitted by Complainant, the only use that Respondent has made of the domain name is to show the content of the website <jesus.com>. Complainant also alleges that the domain name initially pointed to <pillstore.com>, Complainant’s competitor. Respondent also initially registered the domain name under the name "Domains for sale inc.", indicating that Respondent intended only to sell the domain name. In the absence of any submissions by Respondent, the Panel finds that Respondent has no rights and no legitimate interest in the domain name.
Registration and Use in Bad Faith
Complainant alleges that the domain name <walgreeens.com> was being used to divert Internet traffic to a competitor of Complainant, <pillstore.com>. Complainant also alleges that the name of the domain name registrant was changed from Domains for Sale Inc. to Mike Lowell after Complainant contacted John Barry of Domains for Sale. According to Complainant, John Barry offered to transfer the domain name to Complainant and perform unspecified domain name investigations for $1000.
Respondent has not refuted any of these allegations.
Respondent’s registration of a misspelling of the well-known mark, WALGREENS, in the name "Domains for sale inc.", constitutes registration of the domain name in bad faith. The Panel finds that the circumstances indicate that Respondent registered the domain name primarily for the purpose of selling the domain name registration to the Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the domain name. This is evidence of registration and use of the domain name in bad faith under paragraph 4(b)(i) of the Policy.
Use of a domain name that is confusingly similar to a well-known mark to divert Internet users by creating a likelihood of confusion with Complainant also constitutes registration and use of the domain name in bad faith under paragraph 4(b)(iv) of the Policy.
Additionally, Complainant alleges that the contact information provided in connection with Mike Lowell is obviously fictitious. The Center’s records show that the current information provided by Respondent in the WhoIs database is incorrect. The Center’s attempts to send a copy of the Complaint to Respondent at the mailing and e-mail addresses listed in the WhoIs record failed. Provision of false information in the WhoIs record further evidences Respondent’s bad faith.
The Panel finds that the domain name was registered and is being used in bad faith.
The Panel finds that (i) the domain name <walgreeens.com> is confusingly similar to Complainant’s trademark WALGREENS; (ii) Respondent has no rights or legitimate interest in the domain name; and (iii) Respondent registered and is using the domain name in bad faith. Therefore, pursuant to Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel orders that the domain name <walgreeens.com> be transferred to Complainant, Walgreen Co.
Jeffrey H. Kaufman
Dated: May 29, 2002