WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Wal-Mart Stores, Inc. v. Domains by Proxy, LLC / UFCW International Union

Case No. D2013-1304

1. The Parties

Complainant is Wal-Mart Stores, Inc. of Bentonville, Arkansas, United States of America (“USA”), represented by Drinker, Biddle & Reath, LLP, USA.

Respondent is Domains by Proxy, LLC of Scottsdale, Arizona, USA / UFCW International Union of Washington, District of Columbia, USA.

2. The Domain Names and Registrar

The disputed domain names <reallywalmart.com>, <reallywalmart.info>, <reallywalmart.net> and <reallywalmart.org> are registered with GoDaddy.com, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2013. On July 19, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 22, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 29, 2013 notifying that the Complaint was administratively deficient in that it designated a three-member Administrative Panel but did not provide the names and contact details of three candidates as required by the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), paragraph 3(b)(iv), and also providing the registrant and contact information disclosed by the Registrar. On July 30, 2013, Complainant filed an amended Complaint.

The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on July 31, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 20, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 21, 2013.

The Center appointed Jeffrey D. Steinhardt, James A. Carmody and Gary J. Nelson as panelists in this matter on September 23, 2013. The Panel finds that it was properly constituted. Each member of 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 owns many registrations in the United States and worldwide for marks containing the terms “Wal-Mart” and “Walmart,” for example WAL-MART, United States Trademark No. 1783039, registered July 20, 1993 in Class 42 with a first use in commerce date of July 1, 1962. As a result of widespread and continuous use in commerce, the Panel also finds that Complainant owns common-law rights in the WALMART and WAL-MART marks. Complainant also owns many domain names, including <therealwalmart.com>, registered in December 2012 as a part of an advertising and media campaign subsequently initiated by Complainant.

The disputed domain names were registered on January 16, 2013 and route to a website headed by a prominent banner reading “Really, Walmart?” The website also displays Complainant’s marks, and contains information, testimonials, brief video segments and blogs about labor practices and Complainant’s alleged treatment of its workers. The top line of text on the website contains links entitled “Home,” “The Real Story of Walmart,“ “The Walmart Experience,“ “Reality vs. Spin,” and “Petition.” The site contains a notice at the bottom of the page stating:

“Copyright © 2013”

“Really Walmart?”

“All rights reserved.”

“This website is sponsored by the United Food and Commercial Workers International Union. It is a parody of the website threalwalmart.com and is in no way affiliated with Walmart.”

“Legal Disclaimer: UFCW and OUR Walmart have the purpose of helping Walmart employees as individuals or groups in their dealings with Walmart over labor rights and standards and their efforts to have Walmart publically [sic] commit to adhering to labor rights and standards. UFCW and OUR Walmart have no intent to have Walmart recognize or bargain with UFCW or OUR Walmart as the representative of Walmart employees.”

The site also links to a petition allegedly for submission to Complainant about labor practices and invites comments by Complainant’s workers. The site uses colors, shapes and a presentation style similar to Complainant’s website at “www.therealwalmart.com”.

5. Parties’ Contentions

A. Complainant

Complainant contends that the disputed domain names are confusingly similar to its WALMART marks.

Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain names because Respondent is not affiliated with Complainant and lacks authorization to use the WALMART marks. Complainant also contends that, despite the possibility of fair use based upon Respondent’s rights to free speech, Respondent chose confusingly similar domain names that signal authenticity of its website rather than indicating that Respondent’s website is not sponsored or affiliated with Complainant. The confusion is compounded and the use is “unfair,” Complainant avers, because the appearance of Respondent’s website imitates that of a website launched in early May 2013 by Complainant at “www.therealwalmart.com”. Moreover, Respondent’s website repeatedly uses Complainant’s marks. Addressing Respondent’s use of a disclaimer, Complainant first alleges that the damage resulting from user confusion is already done by the time users view Respondent’s webpage and disclaimer (“initial interest confusion”). Complainant also alleges that there is no parody as Respondent claims in the disclaimer, and that Respondent uses the website for commercial gain because the website is a part of Respondent’s “ultimate goal” to recruit union members, thus generating dues. Complainant submits the declaration of its Senior Vice President of Labor Relations in support of Complainant’s allegations that Respondent is attempting to collect dues and other payments, and systematically violating Complainant’s intellectual property rights in the course of Respondent’s organizing efforts.

Complainant alleges that bad faith is established because the disputed domain names were specifically chosen to create a false impression of affiliation, because Complainant’s federal registration and long standing use of the now famous WALMART mark put Respondent on notice of Complainant’s rights, and because Respondent’s website seeks to extract payments from Complainant’s employees and associates. In summary, Complainant asserts that Respondent has intentionally attempted to attract Internet users and Complainant’s associates, employees and customers to its website for commercial gain by creating a likelihood of confusion with its marks.

On these grounds, Complainant seeks transfer of the disputed domain names.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). With respect to each of the disputed domain names, Complainant must establish each element of paragraph 4(a) of the Policy, namely:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

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

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

Complainant must establish these elements, even if Respondent does not submit a Response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).

A. Identical or Confusingly Similar

The Panel agrees with Complainant that the disputed domain names are confusingly similar to a trademark in which Complainant has rights.

UDRP panels generally disregard the gTLD suffix in determining whether a disputed domain name is identical or similar to a complainant’s mark. See e.g., HUK-COBURG haftpflicht-Unterstützungs-Kasse kraftfahrender Beamter Deutschlands A.G. v. DOMIBOT (HUK-COBURG-COM-DOM), WIPO Case No. D2006-0439; VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.

Without the gTLD suffixes, the disputed domain names consist in each case of the combination of Complainant’s WALMART trademark with the added word “really.” The Panel concludes that the addition of the descriptive term “really” does not negate the confusion created by Respondent’s complete inclusion of the WALMART trademark in the disputed domain names. E.g., Sanofi-aventis, Sanofi-Aventis Deutschland GmbH v. Andrey Mitrofanov, WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc., WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner, WIPO Case No. D2006-0629.

In fact, because of the term “really” in ordinary usage suggests truth or authenticity, the Panel finds that the addition of the term “really” to Complainant’s trademark in the disputed domain names increases the confusion that Internet users would experience. Cf. Educational Testing Service v. Jong-Cheol Seo, WIPO Case No. D2006-0056 (“[A]ddition of the generic term ‘real’ creates a likelihood of confusion because the term falsely suggests that the goods and services offered by Respondent are authentic . . . or they are endorsed by the Complainant.”).

The Panel therefore concludes that the first element of paragraph 4(a) of the Policy is established.

B. Rights or Legitimate Interests

The Panel also concludes that the Complainant fulfils the second element of paragraph 4(a) of the Policy as to each of the disputed domain names under analysis, as elaborated below.

The Policy outlines circumstances which, if found by the Panel, may demonstrate respondent’s rights or legitimate interests in the disputed domain name. Policy paragraph 4(c). The circumstance in question in this proceeding is whether Respondent is “making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” Paragraph 4(c)(iii).

Complainant must show a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names, after which, if shown, the burden of rebuttal passes to Respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

Does Respondent’s use of the disputed domain names represent protected free speech? Does it therefore constitute fair use, to underpin the existence of rights and legitimate interests on the part of Respondent?

As explained below, the Panel concludes that Respondent is not making fair use of the disputed domain names.

Respondent has not submitted a response, so the Panel is left with only the record and Complainant’s brief to frame arguments that might be raised in defense. The record reflects use of the disputed domain names in connection with a forum for criticism and labor organizing related to the business conducted by Complainant under its marks. The Complainant alleges that Respondent uses the website in efforts to garner membership (and therefore raise dues for the union), a commercial use of disputed domain names that suggest affiliation with Complainant.

Some UDRP panels recognize a noncommercial¹ free speech right in the use of a website employing a disputed domain name that is identical or confusingly similar to the complainant’s trademark, while others, although acknowledging the existence of the noncommercial free speech fair use defense, have declined to grant the defense in certain cases. Several UDRP criticism site cases turn on whether the disputed domain name is on the one hand identical or, on the other hand, merely confusingly similar to the complainant’s trademark.

Some panels in the former cases (e.g., <trademark.com>) have found that the principle of free speech on the Internet does not go so far under the Policy as to permit the initial confusion experienced by Internet users to be dispelled only upon viewing content of a respondent’s webpage containing criticism, protest or parody. In some of the latter cases (e.g., <trademarksucks.com>), fair use is found because the panel concludes that a respondent’s choice to add certain words to the trademark itself alerts Internet users that the respondent’s webpage is not that of the complainant. Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, WIPO Case No. D2004-0206.²

Members of this Panel have considered these questions in prior proceedings, and hold disparate views on these issues generally. The differences of opinion among UDRP panels and indeed, the present Panel, need not be considered here, however, because the Panel unanimously agrees with Complainant that Respondent’s choice of the disputed domain names is not fair use in this case. Key to the conclusions that the Complaint establishes a prima facie case are Respondent’s choices (1) to compound confusion by adding the term “really” to Complainant’s marks, and (2) to adopt on the website to which the disputed domain names route text, elements, and a style that is very close to that of Complainant’s website at “www.therealwalmart.com”.

As pointed out in the Complaint, the term “really” suggests authenticity or that Respondent’s website is genuinely associated with Complainant’s WALMART mark.³ The Panel finds that Respondent’s choice of domain names, rather being neutral or alerting users to a critical or protest nature, actually reinforces the misleading impression that the websites are affiliated directly with Complainant and its marks. Moreover, Respondent’s webpage content does not clearly alert users, upon first view, that having entered or clicked on the disputed domain names, they are being routed to a website unaffiliated with Complainant. Despite some content that is clearly critical and inviting visitors to post their own stories and sign a petition, the overall appearance of the page and the textual links at the top of the page create the opposite impression.

The Panel’s approach to this determination takes into account those decisions under the Policy that have suggested that fair use is determined not on a bright-line basis but is properly based on the circumstances presented, evaluating the disputed domain names themselves, and where appropriate, also considering the context of use. See, e.g., Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, supra; Fundación Calvin Ayre Foundation v. Erik Deutsch, WIPO Case No. D2007-1947; Bridgestone Firestone Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190; Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505; Satchidananada Ashram - Integral Yoga Institute v. Domain Administrator, NAF Claim No. 0125228; Elm Grove Dodge Chrysler Jeep, Inc. v Schedule Star c/o Adolph Santorine, NAF Claim No. 0352423; Invention Technologies, Inc. v Alliance for American Innovation c/o Ron Riley, NAF Claim No. 0758833; Civic Development Group LLC v. John Paul Schaffer, NAF Claim No. 1001038; Jenny Solursh v. American European Marketing, NAF Claim No. 0864749; Brahma Kumaris World Spiritual Organization v. John Allan, NAF Claim No. 1075486; Equality Charter School, Inc. v. Mona Davids / A Happy DreamHost Customer, WIPO Case No. D2011-1226 (citing, inter alia, Chelsea and Westminster Hospital NHS Foundation Trust v. Frank Redmond, WIPO Case No. D2007-1379).

The Panel must also consider the disclaimer appearing at the bottom of Respondent’s website.

The Panel concludes that the disclaimer statement that the website is not affiliated with Complainant is not effective to remedy the damage already created by (1) the misleading domain names (2) the text of links at the top of the webpage reading “The Real Story of Walmart” and “The Walmart Experience”, and (3) the overall appearance, which is so close to Complainant’s site at “www.therealwalmart.com”.

As a distinct question, the disclaimer also casts the website as a parody, a point disputed by Complainant.

Parody typically involves humor, making fun of or criticizing the underlying work or trademark; satire and irony being essential ingredients.⁴ Complainant contends that a panel should consider only the disputed domain names themselves, and not the content of the websites, to assess the question of parody for fair use, citing Valero Energy Corporation v. American Distribution Systems, Inc., D/B/A Default Data.Com And Brian Wick, WIPO Case No. D2001-0581 and Donald J. Trump v. Web-adviso, WIPO Case No. D2010-2220 (finding disclaimer ineffective where disputed domain names did not themselves contain parody of marks).

While the heading of Respondent’s webpage ironically displays the rhetorical question “Really Walmart?”, owing at least in part to the fact that the Domain Name System provides little chance to include punctuation in a domain name, the disputed domain names omit the question mark. Therefore the disputed domain names themselves fail to suggest satire or criticism.

The Panel does not express a view whether the disputed domain names themselves are the only elements to be evaluated for parody in all cases. In this case, though, the connotation of authenticity resulting from the use of the term “really” in the disputed domain names is so strong that the Panel is persuaded to rely on examination of the disputed domain names alone to rule that Respondent’s use does not constitute genuine parody to support a finding of fair use. Cf., A & F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. v. Justin Jorgensen, WIPO Case No. D2001-0900.⁵

In summary, the Panel finds that the Complainant makes out a prima facie case. Filing no response, Respondent has not rebutted Complainant’s prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain names.

Having concluded that there is no fair use and that the Complaint establishes a prima facie case, the Panel need not consider whether Respondent’s alleged commercial activities through the website would also preclude a finding of fair use under paragraph 4(c)(iii) of the Policy.⁶

C. Registered and Used in Bad Faith

The Policy paragraph 4(b) sets out four illustrative circumstances that evidence the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name;

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct;

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.

The circumstances listed in Policy paragraph 4(b) are not exclusive, as paragraph 4(b) expressly provides. Panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether there is no response to the complaint, a lack of active content appearing on the respondent’s website, concealment of identity, and other circumstances. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Complainant alleges that bad faith is established under Policy paragraph 4(a)(iii), not primarily through the circumstances described in paragraph 4(b) above, but first: because Respondent is seeking to draw visitors to its website for purposes of competing with Complainant to provide information and services, and second: that Respondent uses the disputed domain names for commercial purposes (i.e., recruiting dues paying members). The Complainant also suggests that a finding of bad faith could rest upon Respondent’s use of domain names confusingly similar to Complainant’s marks to damage and disrupt business and divert Internet traffic, citing Compagnie Generale de Matieres Nucleaires v. Greenpeace International, WIPO Case No. D2001-0376, Banque Cantonale de Genève v. Primatex Group S.A., WIPO Case No. D2001-0477 (considering protest site, panel found that the noncommercial character of the website and the absence of a competitive relationship between the parties did not prevent a finding of bad faith), and Escada AG v. Phil Mitchell, WIPO Case No. D2008-0274.

The Panel refrains from grounding its bad faith finding on the first two arguments. With respect to the allegation that bad faith is supported because Complainant’s and Respondent’s sites “compete for seekers of information on Complainant,” the Panel believes that competition for purposes of a finding of bad faith should embrace only commercial competitors in the ordinary sense. Cf. Tribeca Film Center, Inc. v. Lorenzo Brusasco-Mackenzie, WIPO Case No. D2000-1772 (“The Panel respectfully disagrees with the theory of Mission KwaSizabantu and similar cases that any form of oppositional interest (such as that between a trademark owner and the publisher of a criticism site) may transform the complainant and respondent into ‘competitors’ as that term is used in Paragraph 4(b)(iii) of the Policy”) and Deskan S/A v. PRQ Inet KB / Internet.bs Corp. / Fundación Private Whois, WIPO Case No. D2013-1112; see also Sutherland Institute v. Continuative LLC, WIPO Case No. D2009-0693 (“only by the exercise of mental gymnastics may a group of gay rights activists be defined as a ‘competitor’ of a conservative public policy think tank. . . . the Panel does not think this is what the Policy means when it refers to ‘competitors.’”).

As for the point that bad faith may be found because Respondent uses the disputed domain names for a commercial purpose, the Panel notes that the website itself has no direct pitch or attempt to recruit members or to collect dues or donations. The only evidence arguably bearing upon Complainant’s allegations that Respondent has commercial motivation is Exhibit O to the Complaint, the Declaration of Complainant’s Senior Vice-President of Labor Relations. The Declaration consists largely of hearsay evidence, however.

The Declaration describes aspects of what appear to be ongoing labor organizing efforts of Respondent; without expressing approval or disapproval of Respondent’s alleged practices, the Panel notes that the activities described are not linked to the website to which the disputed domain names route.⁷

In sum, the Panel finds that the Complainant fails to establish that the collection of dues is a significant motivation of Respondent in connection with the website to which the disputed domain names route.

The Panel nonetheless agrees that Respondent registered and is using the disputed domain names in bad faith due to circumstances beyond those enumerated in paragraph 4(b) of the Policy. These include disruption of business and the use of confusingly similar domain names which do not, in the Panel’s view as explained above, qualify as a fair use.

In registering the disputed domain names here, Respondent used the term “really” to directly and in a misleading manner signal sponsorship or affiliation with Complainant. Panels in other proceedings involving noncommercial protest sites have found that the use of a misleading domain name that did not signal a lack of sponsorship or affiliation with the mark holder can amount to bad faith. E.g., 1066 Housing Association Ltd. v. Mr. D. Morgan, WIPO Case No. D2007-1461 and Banque Cantonale de Genève, supra. Those proceedings involved mostly neutral domain names, none of which were so strong in suggesting a relation with the right holder as the disputed domain names in this proceeding. Without embracing so broad a rule as that used in those other proceedings, the Panel is comfortable in ruling that in the specific circumstances of this case, the use of the term “really” constitutes bad faith for purposes of the Policy. The Panel also finds that the use of language, trademarks, and a style on the website to which the disputed domain name routes that imitates Complainant’s website is also misleading; it compounds the confusion, while the language of the website does not clearly and immediately dispel that confusion.

Respondent’s election to refrain from submitting a response in these proceedings is, under these circumstances, further evidence of bad faith. In summary, the Panel concludes that the overall circumstances establish bad faith under Policy paragraph 4(a)(iii).

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <reallywalmart.com>, <reallywalmart.info>, <reallywalmart.net>, and <reallywalmart.org> be transferred to Complainant.

Jeffrey D. Steinhardt
Presiding Panelist

James A. Carmody
Panelist

Gary J. Nelson
Panelist

Date: October 7, 2013

¹ The Panel considers the question of fair use without the added potential ingredient of “commercial” use alleged in the Complaint. As explained below, it is not necessary to consider whether Respondent’s use is commercial.

² The range of UDRP panel views on these issues is summarized in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.4.

³ Annex J to the Complaint, an excerpt from the online Webster-Merriam Dictionary, shows the first to meanings of “really” as “actually” and “truly, unquestionably.”

⁴ See generally Sutherland Institute v. Continuative LLC, WIPO Case No. D2009-0693 (rejecting parody argument on basis that disputed domain name was identical to the complainant’s service mark, suggesting transformation of the marks would be necessary to find parody).

⁵ In any case, the Panel also notes that due to the similarity in appearance between Respondent’s and Complainant’s websites and the links at the top of Respondent’s page reading “The Real Story of Walmart” and “The Walmart Experience”, an Internet user’s confusion about the authenticity of the website extends beyond initial interest confusion. E.g., Union Square Partnership, Inc., Union Square Partnership District Management Association, Inc. v. unionsquarepartnership.com Private Registrant and unionsquarepartnership.org Private Registrant, WIPO Case No. D2008-1234.

The panel in Union Square Partnership posited a two-step “process for determining whether the domain name at issue constitutes a parody of the Complainant’s trademarks. In the first step, [the] Panel determines whether the domain name itself has the capacity to constitute parody. If the Panel can answer this question in the affirmative, it will then examine whether the Respondent’s use of that domain name, on its web site or otherwise, is consistent with its claim of parody.” See also Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490 (2d Cir. 1989)(delicate balance required between artistic expression and preventing consumer confusion: “A parody must convey two simultaneous--and contradictory--messages: that it is the original, but also that it is not the original and is instead a parody.”).

⁶ The Panel notes that de minimis economic activity ancillary to the primary thrust of criticism websites may be permissible. E.g., Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, WIPO Case No. D2004-0206 (“The Complainant contends that by offering for sale t-shirts and other ‘merchandise’ and by acquiring financial donations the Respondent is making commercial gain. On the evidence, these are activities that are merely ancillary to the Respondent’s main purpose which is to criticize the Complainants’ activities . . . .”); Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014.

⁷ Another UDRP panel similarly found evidence about Respondent’s efforts in recruiting membership through avenues other than the website connected to the domain name at issue in that case -- in the form of another declaration from Complainant’s Senior Vice-President of Labor Relations -- to be tangential to providing evidence of commercial motive in a UDRP proceeding involving these same parties. Wal-Mart Stores, Inc. v. UFCW International Union, WIPO Case No. D2012-1541 (with briefs from both parties, panel ruled that Respondent failed to establish fair use; Complainant failed to prove bad faith in use of the <walmartat50.com>, <walmartat50.net> and <walmartat50.org> domain names).