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Arbitrator Rules Against Registrant of Several Wal-MartSucks.com Sites

2 August 2000

An arbitrator weighing a dispute over the rights to Internet domain names such as Wal-MartCanadaSucks.com and WalMartPuertoRicoSucks.com has determined that the addresses should belong to department store giant Wal-Mart Stores Inc. [NYSE: WMT], rather than the Canadian resident who argues such "protest" monikers are just fair comment in the form of a Web URL.

The decision, under a low-cost dispute resolution process launched late last year by the Internet Corporation for Assigned Names and Numbers (ICANN) calls into question the fate of at least a half dozen other "sucks"-flavored domain names in the queue for similar arbitration.

The decision on a handful of derisive Wal-Mart "sucks" domains - also including WalMartUKSucks.com and Wal-MartCanadaSucks.com (without a hyphen) - isn't the first under ICANN's Uniform Domain-name Dispute Resolution Policy (UDRP) to demand that domains be turned over to the target of such a protest.

However, it is the first ruling to claim that Web surfers are likely to be fooled into thinking that a domain such as Wal-MartCanadaSucks.com would actually belong to the world's biggest retailer.

Perhaps it's not that hard to believe, considering the Bentonville, Arkansas, company actually does own the ".org" and ".net" versions of Wal-MartCanadaSucks and Wal-MartSucks (with and without the hyphen) and several other variations on the theme. But then, Wal-Mart's Internet team didn't start registering insulting versions of their own company trademark until they ran into folks like Kenneth Harvey of Newfoundland.

According to Frederick Abbott, the arbitrator who made the UDRP ruling earlier this month, Harvey has a history of going head-to-head with the American retailer over Internet domain names. And Abbott wrote that Harvey's past behavior, in addition to his wielding of the trio of protest domains, convinced him to order the addresses turned over to Wal-Mart.

In May, another decision under the UDRP took the domain WalMartCanada.com from Harvey after the arbitrator in that case determined that Harvey had offered to sell the domain for $5 million.

Abbott, assigned to the latest dispute by the World Intellectual Property Organization (WIPO) - one of four organizations accredited to handle UDRP cases - found that Harvey registered the four protest domains plus the less-controversial "WalMartPuertoRico.com" after losing his earlier dispute.

After registering the domains, Harvey fired off e-mail to the company announcing the acquisitions - a move Abbott said was part of an ongoing campaign on Harvey's part to receive fees from Wal-Mart as an Internet domain name "consultant."

In his defense, Harvey pointed out that, in a number of high- profile cases in US courts - including a dispute over the domain LucentSucks.com - courts have ruled that such addresses are fair comment, not trademark infringements.

But Abbott wrote: "In light of the significant fame associate with the Wal-Mart mark, consumers are likely to believe that any domain name incorporating the Wal-Mart name (or WalMart) is associated with (the company). The domain names at issue are likely to confuse customers and cause them to believe mistakenly that these domain names are associated with Wal-Mart stores and specifically, the Wal-Mart family of stores in Canada, Puerto Rico and the United Kingdom.

"This is particularly troublesome, since Mr. Harvey clearly intends to use these domain names to disparage (Wal-Mart)."

Said Internet law expert Michael Geist, of the University of Ottawa Law School in Canada: "The point is often made, as it was in the Lucent case, that it should be readily apparent to someone that (a "sucks" domain) is not a company's site."

However, he said, "I think what was ultimately the issue is that the arbitrators are looking at instances where they feel there is bad faith, and in many instances they are going to find the justification to get to that end point. Now, in this particular case, you do have someone who has, based on the material that is submitted, engaged in what would be seen by most arbitrators as bad faith conduct.

"That's really what's going to rule the day."

Abbott was the arbitrator in one of the UDRP's first protest-site decisions, a dispute over an address pointing to Web pages used to discredit Monty Roberts, famed for his best-selling book "The Man Who Listens To Horses."

However, that decision, which resulted in the addresses MontyRoberts.org and MontyRoberts.net being taken away from the protester, involved monikers that exactly matched the name of the protest's target.

ICANN can be found online at www.icann.org.

Reported by Newsbytes, www.newsbytes.com.

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