The Complainant is Wal--Mart Stores, Inc., Bentonville, Arkansas, United States of America, represented by David A. Bell, Haynes and Boone, LLP, Dallas, Texas, United States of America.
The Respondent is Nolen Thorn, Spring, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <walmarttoyland.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2007. On March 13, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On March 15, 2007, Go Daddy Software 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 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 March 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 11, 2007.
The Center appointed Nicolas Ulmer as the sole panelist
in this matter on April 18, 2007. 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
Complainant is a very large and well--known retailer in the United States and many other countries. Complainant sells a wide variety of products, including toys. The following United States trademarks are registered to Complainant:
(1) U.S. Registration Number 1,322,750, registered February 26, 1985;
(2) U.S. Registration Number 1,783,039, registered July 20, 1993; and
(3) U.S. Registration Number 2,891,003, registered October 5, 2004.
Complainant also extensively uses the Internet in its business and marketing, and advertises widely, including with the phrases “Wal--Mart Toyland” and “Toyland at Walmart”.
Respondent is listed as registrant of the disputed domain name which was registered on or about February 27, 2005. Respondent is also the listed registrant of the domain name <thetoyland.com>; that site appears to have content that is largely identical to the content of the disputed domain name site. The disputed domain name resolves to a commercial site promoting numerous products or services, including toys that are competitive with those of Complainant. Respondent is a member of the Walmart.com Affiliate Program, which allows Affiliates to earn commission by placing certain authorized advertisements and links referring to Complainant’s site. The Affiliate Program Agreement expressly prohibits Affiliates from using Complainant’s marks, or variations thereof (see Annexes 10 and 11 to Complaint).
Demand letters were repeatedly sent by Complainant’s counsel both via email and certified mail to Respondent demanding that it cease the use of Complainant’s marks. The emails were undeliverable and no response was received from the certified letters.
Other attempts by Complainant or its lawyers to contact
Respondent by phone and email have proved unsuccessful as none of the addresses
or numbers used by Respondent in registering the disputed domain name were valid
or effective.
5. Parties’ Contentions
A. Complainant
Complainant submits a highly detailed complaint to the effect that all elements of paragraph 4(a) of the Policy are met, and that Respondent’s behaviour, as outlined above, is obviously in bad faith. This bad faith behaviour is alleged to include Respondent’s use of false contact information in its domain registration and in its Affiliate Program registration. Further specifics of these allegations are discussed in Section 6, below.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
The Policy, in paragraph 4(a), provides that Complainant must prove each of the following:
(i) The Respondent’s Domain Name is identical or confusingly similar to a trade or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and used in bad faith.
A. Identical or Confusingly Similar
The disputed Domain Name begins with and incorporates the entirety of the Complainant’s
trademarks. This is not cured by the addition of “toyland” or the
dropping of the hyphen. The Domain Name is clearly confusingly similar to the
marks of Complainant. This conclusion is consistent with the many WIPO UDRP
cases cited by Complainant, including Wal--Mart Stores, Inc. v. Tauer,
WIPO Case No. D2000-1076.
B. Rights or Legitimate Interests
The file and evidence presented shows no basis to believe Respondent has any right or legitimate interest in respect of the disputed domain name. On the contrary, all evidence points to Respondent’s use of the disputed Domain Name with knowledge of Complainant’s rights. Complainant’s marks are used extensively throughout the world, including in online media (Annex 6 to Complaint). Furthermore, the Affiliate Program Agreement entered into by Respondent specifically forbids Respondent’s use of the Complainant’s marks. Based on the foregoing and the absence of a Response from the Respondent, the Panel finds that Respondent has no rights or legitimate interests in the disputed Domain Name.
C. Registered and Used in Bad Faith
It is not plausible that Respondent registered the disputed Domain Name in
ignorance of Complainant’s prior rights and well--known business name.
Rather, the evidence shows that Respondent has made use of the Complainant’s
marks in its marketing of competing products, and it appears that the disputed
Domain Name was deliberately registered with knowledge of Complainant’s
prior rights. This is specific indicia of bad faith under paragraph 4(b)(iv)
of the Policy. Further, such indicia is Respondent’s breach of the Affiliate
Program Agreement, and the use of false or misleading contact information in
its Affiliate registration and domain registration, see e.g.Lincoln
Prop. Co. v. LPC, WIPO Case No. D2001-0238.
It is here evident that Respondent registered and used the disputed Domain Name
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 <walmarttoyland.com> be transferred to the Complainant.
Nicolas Ulmer
Sole Panelist
Dated: May 2, 2007
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