The Complainant is Tyson Foods, Inc. of Springdale, Arkansas, United States of America ("United States"), represented by Winston & Strawn LLP, United States.
The Respondent is Domain Admininstrator, Dvlpmnt Marketing, Inc. of Charlestown, Saint Kitts and Nevis. 2. The Domain Name and Registrar
The disputed domain name is registered with DNC Holdings, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 16, 2017. On February 17, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 17, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 13, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 17, 2017.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on March 23, 2017. 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
The Complainant is Tyson Foods, Inc. a company organized under the laws of Delaware, United States. According to the uncontested allegations of the Complainant, Tyson Foods, Inc., is one of the largest food production companies in the United States and throughout the world. It had more than USD 40 billion in sales in 2015 and has more than 113,000 employees in the United States and all over the world. It is operating and has operated its business under the name "Tyson Foods" for many years.
The Complainant owns multiple trademark registrations for the TYSON trademark with the United States Patent and Trademark Office ("USPTO") in connection with the marketing of its food products, including United States Trademark Registration No. 1,748,683, registered on January 26, 1993; United States Trademark Registration No. 2,810,231, registered on February 3, 2004; United States Trademark Registration No. 2,833,874, registered on April 20, 2004; United States Trademark Registration No. 2,868,632, registered on August 3, 2004; United States Trademark Registration No. 3,204,061, registered on January 30, 2007; United States Trademark Registration No. 3,998,293, registered on July 19, 2011. The Complainant also submitted evidence of its United Kingdom of Great Britain and Northern Ireland Trademark Registration No. 2106280, registered on February 7, 1997. According to the uncontested allegations of the Complainant, it has achieved significant goodwill and international fame in its TYSON and TYSON FOODS marks. The Complainant owns a valid and incontestable United States federal trademark registration for TYSON, demonstrating Complainant's rights in the TYSON mark.
Further, the Complainant Tyson Foods, Inc. is the owner of the domain name .
The disputed domain name was registered on November 28, 2005. The disputed domain name resolves to a website featuring links to third-party websites that are unrelated to the Complainant. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy ("In the administrative proceeding, the complainant must prove that each of these three elements are present"). As such, the Panel can not merely grant the Complainant's request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns registered trademark rights in the mark TYSON and that it has been actively using these trademarks.
The mere fact that the Respondent has registered the disputed domain name with the dictionary word "careers" and the generic Top-Level Domain ("gTLD") ".com", does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainant and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many previous UDRP panels have found. See e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252; Nationwide Mutual Insurance Company v. Whois Agent, WHois Privacy Protection Service, Inc./Zhichao Yang,WIPO Case No. D2015-1129; Facebook, Inc., v. on behalf of customers,WIPO Case No. D2016-0244.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark TYSON. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant's right to or legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: The Respondent is not making a bona fide offering of its goods.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record.
The Respondent does not seem to have any trademark registrations including the term "tyson". Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant's argumentation on this point is mainly based on the circumstances mentioned in paragraph 4(b)(iv) of the Policy in order to demonstrate the Respondent's bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in bad faith.
The Panel finds it highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainant's TYSON trademark. Rather, on a reasonable examination of the evidence, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant's reputation.
Further, according to the uncontested allegations of the Complainant, the disputed domain name at the time of filing the Complaint was used to redirect consumers to a website featuring links to third-party websites that are unrelated to the business of the Complainant. Such use of the Complainant's trademark by the Respondent is evidence of bad faith.
The Panel also notes the default of the Respondent, which in the present circumstances "reinforces the inference of bad faith registration and bad faith use". The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. 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 name be transferred to the Complainant.
Christos A. Theodoulou
Sole Panelist
Date: March 24, 2017
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