## Facts

- Wal-Mart Stores, Inc. (Wal-Mart) owned registered trademark rights in **WAL-MART** used in connection with its discount retail business.
- Kenneth J. Harvey, a Canadian writer, had **previously been found to have registered Wal-Mart–related domain names in violation of the UDRP** in earlier proceedings.
- After those earlier decisions, Harvey registered the domain name **wallmartcanadasucks.com** (with an extra “l” in “wallmart,” combined with “canada” and “sucks”).
- Unlike the earlier disputes, Harvey **did not offer to sell** this domain name to Wal-Mart and **did not demand payment** (including any “consulting fees”) tied to the registration.
- The website at **wallmartcanadasucks.com** contained **negative commentary aimed largely at Wal-Mart’s attempts to control use of its name and trademark**, rather than detailed complaints about Wal-Mart’s goods, pricing, or store operations.
- Wal-Mart filed a complaint with the **WIPO Arbitration and Mediation Center** under the **Uniform Domain Name Dispute Resolution Policy (UDRP)** seeking transfer of the domain name.
- The case was decided by a **single-member WIPO administrative panel** (Henry H. Perritt, Jr.).

## Issues

1. Whether **wallmartcanadasucks.com** is identical or confusingly similar to a trademark in which Wal-Mart has rights (UDRP ¶ 4(a)(i)).
2. Whether Harvey has rights or legitimate interests in the domain name (UDRP ¶ 4(a)(ii)).
3. Whether the domain name was registered and is being used in bad faith (UDRP ¶ 4(a)(iii)).

## Decision

- The panel **denied** Wal-Mart’s complaint and **refused to order transfer** of **wallmartcanadasucks.com**.
- On **confusing similarity (¶ 4(a)(i))**, the panel found the domain name **was not confusingly similar** to WAL-MART because the inclusion of **“sucks”** (and the overall phrasing) signaled a protest/complaint site rather than a Wal-Mart source.
- On **rights or legitimate interests (¶ 4(a)(ii))**, the panel found Harvey had a **legitimate interest** because the domain was used as a **noncommercial platform for negative commentary** and not as a vehicle to mislead users for commercial gain.
- On **bad faith (¶ 4(a)(iii))**, the panel found the domain name was **not registered or used in bad faith**, emphasizing the absence of an offer to sell, the lack of evidence of commercial diversion through confusion, and the expressive purpose of the site.
- Although Wal-Mart pointed to Harvey’s earlier adverse UDRP findings, the panel treated that history as **not dispositive** in this separate registration.

## Legal Principles

- A UDRP complainant must prove **all three** elements in ¶ 4(a); failure on any element requires denial.
- In assessing **confusing similarity**, panels may consider whether the domain name’s overall wording communicates to ordinary users that the site is **not** affiliated with the trademark owner; adding a term like **“sucks”** can signal a protest site rather than sponsorship.
- A respondent may establish **rights or legitimate interests** through **noncommercial or fair use** (UDRP ¶ 4(c)(iii)) when the domain is used for negative commentary **without intent for commercial gain** and without misleading diversion.
- **Bad faith** under the UDRP generally requires evidence fitting recognized categories (such as registering primarily to sell to the mark owner, blocking the mark owner as part of a pattern, disrupting a competitor, or attracting users for commercial gain by creating confusion). Expressive use aimed at negative commentary, without more, may fall outside those categories.
- Prior adverse UDRP decisions involving the same respondent can be relevant background, but **each domain name and use must be evaluated on its own record**.

## Conclusion

WIPO denied Wal-Mart’s request to transfer **wallmartcanadasucks.com** because the panel found the “sucks” formulation communicated a protest site rather than a Wal-Mart source, Harvey’s use qualified as legitimate noncommercial negative commentary, and the record did not show registration or use in bad faith as required by UDRP ¶ 4(a).


Wal-Mart Stores v. Wallmartcanadasucks.com, Case No. D2000-1104 (2000)