Complainant is Tyson Foods, Inc. of Springdale, Arkansas, United States of America (“United States”) represented by Loeb & Loeb, LLP of Chicago, Illinois, United States.
Respondent is Domain Administrator, See PrivacyG of Phoenix, Arizona, United States / Site Matrix LLC, Domain Administrator of San Juan, Puerto Rico, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 12, 2018. On September 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 12, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 13, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 18, 2018.
The Center verified that the Complaint and amended 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 Respondent of the Complaint, and the proceedings commenced on September 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 9, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 11, 2018.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on October 16, 2018. 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
Complainant states that it is “one of the largest food production companies in the United States and throughout the world” with “more than $38 Billion in sales in 2017” and “more than 122,000 employees at facilities and offices in the United States and around the world.”
Complainant states, and provides evidence to support, that it owns multiple trademark registrations that consist of or contain the mark TYSON, including the following:
- U.S. Reg. No. 1,748,683 for TYSON for use in connection with “fresh and frozen, cooked and uncooked meat and poultry sold separately and as part of prepackaged prepared meals” (first used in commerce in 1958; registered on January 26, 1993);
- U.S. Reg. No. 2,810,231 for TYSON for use in connection with “beef and pork” (first used in commerce on January 10, 2003; registered on February 3, 2004); and
- U.S. Reg. No. 2,833,874 for TYSON for use in connection with “luncheon meats [, pepperoni ] and sausage” (first used in commerce on January 10, 2003; registered on April 20, 2004).
These trademarks are referred to herein as the “TYSON Trademark.”
Complainant operates websites using the domain names and .
The Disputed Domain Name was created on August 14, 2018. The Disputed Domain Name is being used in connection with what appears to be a monetized parking page, with links labeled “Job Posting Board,” “Recruiting Agency,” and “Staffing Companies.” 5. Parties’ Contentions A. Complainant
Complainant contends, in relevant part, as follows:
- The Disputed Domain Name is confusingly similar to the TYSON Trademark because it “incorporates Complainant’s TYSON and TYSON FOODS marks in full, changing the famous and federally registered TYSON mark only by adding the letter ‘s’ to Tyson, the descriptive terms ‘foods’ and ‘career’ and the generic top-level domain (‘gTLD’) ‘.com.’”
- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, Respondent acted “[w]ithout Complainant’s authorization or consent”; “Respondent is not commonly known by the disputed domain name, has not used or prepared to use the domain name in connection with a bona fide offering of goods or services, has not been authorized, licensed, or otherwise permitted by Complainant to register and/or use the concerned domain name”; “the pertinent WHOIS information” does not identify Respondent as “Tyson”; and “Respondent’s use of the domain name constitutes an intent, for commercial gain, to misleadingly divert consumers and potential employees to a website with a gateway for links to other websites (including websites unaffiliated with Complainant).”
- The Disputed Domain Name was registered and is being used in bad faith because, inter alia, “Respondent acquired and is commercially using the domain name, a domain name that is confusingly similar to Complainant’s TYSON and TYSON FOODS marks, to capitalize on Internet users’ efforts to find Complainant’s website and seek information about employment opportunities with Complainant.” B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (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. Policy, paragraph 4(a). A. Identical or Confusingly Similar
Based upon the trademark registrations cited by Complainant, it is apparent that Complainant has rights in and to the TYSON Trademark.
As to whether the Disputed Domain Name is identical or confusingly similar to the TYSON Trademark, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “tysonsfoodscareer”) because “[t]he applicable Top-Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1.
The Disputed Domain Name is identical to some of the TYSON Trademarks with minor exceptions: addition of the letter “s” after the TYSON Trademarks and addition of the words “foods” and “career.” As set forth in section 1.7 of WIPO Overview 3.0, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” Further, section 1.8 of WIPO Overview 3.0 states: “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” Finally, the addition of a single letter “s” has long be found irrelevant for purposes of the first element of the Policy. See, e.g., Deutsche Telekom AG v. Vision Computer S.L.,WIPO Case No. D2001-1240 (finding the domain names and confusingly similar to the trademark T-MOBILE).
Accordingly, the Panel finds that Complainant has proven the first element of the Policy. B. Rights or Legitimate Interests
Complainant has argued that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, Respondent acted “[w]ithout Complainant’s authorization or consent”; “Respondent is not commonly known by the disputed domain name, has not used or prepared to use the domain name in connection with a bona fide offering of goods or services, has not been authorized, licensed, or otherwise permitted by Complainant to register and/or use the concerned domain name”; “the pertinent WHOIS information” does not identify Respondent as “Tyson”; and “Respondent’s use of the domain name constitutes an intent, for commercial gain, to misleadingly divert consumers and potential employees to a website with a gateway for links to other websites (including websites unaffiliated with Complainant).”
WIPO Overview 3.0, section 2.1, states: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Panel finds that Complainant has established its prima facie case and without any evidence from Respondent to the contrary, the Panel is satisfied that Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has 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 registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant 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 registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).
Complainant does not specify which, if any, of the enumerated factors is applicable here. However, numerous panels under the Policy have found the registration and use of a domain name that is confusingly similar to a complainant’s trademark to constitute bad faith pursuant to paragraph 4(b)(iv) of the Policy where, as here, the domain name is associated with monetized parking pages that could be construed as associated with the complainant. See, e.g., Wal-Mart Stores, Inc. v. Whois Privacy, Inc.,WIPO Case No. D2005-0850; Columbia Pictures Industries, Inc. v. North West Enterprise, Inc.,WIPO Case No. D2006-0951; and Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service,WIPO Case No. D2011-1753.
Further, as set forth in section 3.5 of WIPO Overview 3.0:
Particularly with respect to “automatically” generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests).
Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith.
In addition, the Panel notes that the term “foods” in the Disputed Domain Name is clearly related to Complainant’s business and that, together with the term “career” in the Disputed Domain Name, the Disputed Domain Name is likely to be confused with Complainant’s own website using the domain name .
Furthermore, as numerous previous decisions under the Policy have found, use of a domain name so obviously associated with employment opportunities at a complainant creates a high risk of phishing. See, e.g., Starwood Hotels & Resorts Worldwide Inc., The Sheraton LLC, Sheraton International Inc. v. infosheraton,WIPO Case No. D2010-2195 (finding no rights or legitimate interests where respondent used the disputed domain name “to conduct a job-search scam aimed at stealing the money and identity of unsuspecting individuals… [and] that although there is no current active website associated with the disputed domain name, the domain name is being used in connection with [an] email address [containing the domain name] to perpetrate this job fraud scam”); and Terex Corporation v. Williams Sid, Partners Associate,WIPO Case No. D2014-1742 (finding no rights or legitimate interests where the disputed domain name was used “in connection with an employment-related and identity-theft scam, by impersonating Complainant in an effort to obtain personal information from innocent job-seekers”). Here, even though there is no evidence that Respondent has engaged or is engaging in such activities, Complainant “need not wait for direct harm” to establish bad faith. Fulham Football Club (1987) Limited v. /Belize Domain Services,WIPO Case No. D2001-0335. See also WIPO Overview 3.0, section 3.1.4: “[G]iven that the use of a domain name for per se illegitimate activity such as… phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.”
Accordingly, the Panel finds that Complainant has proven the third element of the Policy. 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 Complainant.
Douglas M. Isenberg
Sole Panelist
Date: October 23, 2018
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