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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Wal-Mart Stores, Inc. v. Antigua Domains

Case No. D2006-0503

 

1. The Parties

The Complainant is Wal-Mart Stores, Inc., Bentonville, Arkansas, United States of America, represented by Kirkpatrick & Lockhart Nicholson Graham LLP, United States of America.

The Respondent is Antigua Domains, St. Johns, Antigua, Antigua and Barbuda.

 

2. The Domain Name and Registrar

The disputed domain name <walmartbenifits.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2006. On April 21, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On April 28, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 28, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 18, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 19, 2006.

The Center appointed Johan Sjцbeck as the sole panelist in this matter on May 30, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

The Complainant has provided hard copy evidence of the following registered trademarks: WAL-MART in the United States with registration number 1,783,039, registered July 20, 1993; WAL-MART & Design in the United States with registration number 1,322,750, registered February 26, 1985; WAL MART & Design in the United States with registration number 2,891,003, registered October 5, 2004; WAL MART in the United Kingdom with registration number 2,225,251, registered June 7, 2002.

The holder of the disputed domain name <walmartbenifits.com> is Domain Buyer, Antigua Domains, St Johns, Antigua.

 

5. Parties’ Contentions

A. Complainant

The Complainant, established in 1962, is the world’s largest retailer. The Complainant operates 1,188 Wal-Mart Stores, 2,007 Supercenters, 567 Sam’s Clubs and 102 Neighborhood Markets in the United States and 2,670 Wal-Mart Stores and Supercenters in 16 countries worldwide. The Complainant operates online shopping websites at various locations including “www.walmart.com”, “www.wal-mart.com” and “www.walmartstores.com”. Furthermore, the Complainant maintains a benefits website for its 1.7 million employees at “www.walmartbenefits.com”.

The Complainant owns numerous registered WAL-MART trademarks and has trademark rights in the mark WAL-MART BENEFITS for employee services. The Complainant has submitted evidence of WAL-MART and WAL MART trademark registrations in the United States and the United Kingdom.

In March 2006, the Complainant became aware of the Respondent’s operation of a website under the disputed domain name <walmartbenifits.com>. The disputed domain name is redirected and shares content with the domain name <healthinsurence.net> providing a search engine and links to various commercial websites, including those that sell goods similar to those sold at Wal-Mart stores and online. In addition, the website contains categories related to payroll and benefits information, similar to the categories at “www.walmartsbenefits.com”. It is the opinion of the Complainant that this could confuse Wal-Mart employees and give the impression that these services are sponsored by or endorsed by the Complainant.

The disputed domain name is a combination of two words, namely “walmart” and the misspelled word “benifits”. The first word is virtually identical to the Complainant’s trademark WAL-MART. Adding a descriptive word to another’s trademark is not sufficient to avoid confusing similarity.

The disputed domain name <walmartbenifits.com> is identical to the Complainant’s employee benefits website with the domain name <walmartbenefits.com>. The Respondent has replaced an “e” with an “i” to create a common misspelling of the Complainant’s WAL-MART BENEFITS mark. The Respondents website benefits from the possible typographical error because of a large number of consumers and employees frequent the Complainant’s websites. The disputed domain name is likely to confuse consumers and employees and cause them to believe mistakenly that it is associated with the Complainant and tarnish the Complainant’s trademarks WAL-MART and WAL-MART BENEFITS.

The Respondent has no rights to any trademark consisting of the term “Wal-Mart” or “Wal-Mart Benefits” in the course of trade or in connection with a bona fide offering of goods or services. The Respondent is using the disputed domain name with the intent, for commercial gain, to misleadingly divert the Complainant’s consumers and employees to its website and to disrupt the Complainant’s business.

The disputed domain name was registered and is being used in bad faith. The Respondent registered the domain name with knowledge of the Complainant’s trademarks. The Respondent’s website contains a deep link to “www.walmart.com”, clearly demonstrating the Respondent’s knowledge of the Complainant. The Respondent is using the disputed domain name to attract Internet users to its websites by creating a likelihood of confusion with the Complainant’s trademarks. The Complainant argues that the Respondent’s website is a classic case of typosquatting. The Respondent is targeting misguided Wal-Mart employees looking for information on the status of their paychecks or benefits. The same people who have a need to visit the Complainant’s website “www.wallmartbenefits.com” are also likely to be attracted by the paycheck advance and related insurance and financial services offered on the Respondent’s website “www.wallmartbenifits.com”, and may be confused as to whether these services are sponsored by the Complainant, who has no control over the quality of these services.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4 (a) of the Policy, the Complainant must prove each of the following:

(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant is, according to the submitted evidence, the owner of the registered trademarks WAL-MART and WAL MART. The disputed domain name incorporates the Complainant’s trademarks in its entirety with the addition of the word “benifits”. Although the Complainant has not submitted any evidence of a registration of the trademark WAL-MART BENEFITS, it has been demonstrated that the Complainant actively operates a website in connection with the domain name <walmartbenefits.com>. It has also been shown that the Respondent’s website contains links leading to the Complainant’s website. Having this in mind, the Panel finds it very likely that the word “benifits” is a misspelled version of the generic word “benefits”.

The ability for such a generic word to distinguish the domain name from the trademark is limited and has little, if any, legal significance according to previous case law. See for example Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102, regarding the domain name <nokiagirls.com>, in which the addition of the noun “girls” was not sufficient to distinguish the domain name from the trademark NOKIA.

Having the above in mind, it is the opinion of the Panel that the domain name <walmartbenifits.com> is confusingly similar to the Complainant’s trademarks WAL-MART and WAL MART.

B. Rights or Legitimate Interests

The Complainant has not licensed or otherwise consented to the Respondent’s use of its trademarks WAL-MART and WAL MART in connection with the disputed domain name <walmartbenifits.com> which is confusingly similar to the trademarks of the Complainant.

No evidence or circumstances in the case indicate that the Respondent has been commonly known by the disputed domain name or that the Respondent has rights to any trademark consisting of the terms “wallmart” or “wallmartbenifits”.

The website of the Respondent offers commercial links not only to the Complainant’s website but also to various vendors that sell goods similar to those sold by the Complainant. The Respondent’s use of the disputed domain name is likely to attract for commercial gain Internet users searching for the Complainant’s website or trademark. Such commercial use of the disputed domain name which is likely to lead to confusion of Internet users does not constitute a bona fide offering of goods or services nor does it constitute a legitimate non-commercial or fair use of the domain name.

There is no evidence in the case that refute the Complainant’s submissions, and the Panel concludes that the Complainant has proved the requirement under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Under Paragraph 4(b) of the Policy, evidence of bad faith registration and use include:

(i) circumstances indicating the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) circumstances indicating that the domain name were registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided it is a pattern of such conduct; or

(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the domain name has intentionally been used in an attempted to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location.

The website connected with the disputed domain name <walmartbenifits.com>, which is confusingly similar to the Complainant’s trademarks, contains links leading to the Complainant’s website at “www.walmart.com”. The Complainant is using a trademark registration symbol when referencing the WAL-MART trademark on its websites at “www.walmart.com” and “www.walmartbenefits.com”. These circumstances suggest that the Respondent had knowledge of the Complainant and its trademarks.

From the evidence submitted, it is clear that the content of the Respondent’s website includes commercial links to various vendors that sell services similar to those offered by the Complainant through its “www.walmartbenefits.com”, including various insurance and financial companies. The circumstances in the case before the Panel indicate that the disputed domain name <walmartbenifits.com> has intentionally been used in an attempt to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the trademarks WAL-MART and WAL MART as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location. There is no evidence in the case that refute the Complainant’s submissions.

Having all of the above in mind, the Panel concludes that the Complainant has proved the requirements under paragraph 4(b) of the Policy and that the domain name <walmartbenifits.com> has been registered and used in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <walmartbenifits.com> be transferred to the Complainant.


Johan Sjцbeck
Sole Panelist

Dated: June 13, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0503.html

 

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