May 3rd, 2005
Wal-Mart's Domain Name Battles
A recent decision by the WIPO Arbitration Center took the domain name walmartfacts.biz away from Jeff Milchen, a self-described Wal-Mart critic. The panel found that Milchen had "registered the name in bad faith," a term that has specific meaning under ICANN’s Uniform Domain-Name Dispute Resolution Policy (UDRP). According to Evan Brown:
In taking this "totality of the circumstances" approach, the panel considered four factors to find that the domain name was registered in bad faith. First, the respondent had not used the domain name to post content constituting fair use or any other legitimate purpose. Second, the respondent knew of Wal-Mart’s trademark rights when he registered the domain name in January of 2005. Third, the respondent’s "admitted animus" was an indication of actual malice and ill will toward Wal-Mart. Fourth, the use of the entire Wal-Mart trademark in the domain name made it difficult for users of the Internet to infer a legitimate use of the domain name by the respondent.
Wal-Mart has been very active at WIPO in battling against domain names that are used by its critics. This hasn’t stopped some anti-Wal-Mart sites from continuing to operate. These sites differ from this case primarily in the first factor–they are active. There’s a fine line between protecting the legitimate trade mark claims of companies and also protecting the ability of individuals and small groups to speak out against large powerful organizations like Wal-Mart. I’m not convinced that pendulum has swung too far one way or the other, but this is an area worth keeping your eye on if you’re concerned about online rights. Domain names have real power and that power shouldn’t be exclusively controlled by one side or the other.
Phil Windley is an Associate Professor of Computer Science at Brigham Young University. See his full profile and disclosure of his industry affiliations.
