The Complainant is Tyson Foods, Inc., Tyson Fresh Meats, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.
The Respondent is Domain Admin, Privacy Protect, LLC, United States / Paul Glen, Paul Glen Glen, Turkey. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2020. On April 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 30, 2020, 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 the Complainant on April 30, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 4, 2020. 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 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 May 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 27, 2020. The Center appointed Alistair Payne as the sole panelist in this matter on June 6, 2020. 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 Tyson Foods, Inc. together with its wholly owned subsidiaries, including Tyson Fresh Meats, Inc. (together referred to as “the Complainant”) is one of the largest food production companies in the world and the second largest processor and marketer of chicken, beef and pork in the world and its business dates back to 1935. The Complainant had more than USD 42 Billion in sales in 2019, is a member of the S&P 500, and has more than 141,000 employees at facilities and offices in the United States and around the world. It owns various trade mark registrations that incorporate its TYSON mark including, in particular, United States trade mark registration number 1748683 for the word mark TYSON registered on January 26, 1993. The Complainant has operated under the business name “Tyson Fresh Meats” since at least 2000 and this business operates under a number of brands each of which are registered as trade marks, such as, “IBP TRUSTED EXCELLENCE”, “CHAIRMAN’S RESERVE”, “OPEN PRAIRIE” and “STAR RANCH ANGUS”. It maintains an active Internet presence at various websites, including at “www.tyson.com” and “www.tysonfreshmeats.com”. The latter website is dedicated to the business of “Tyson Fresh Meats” and provides key information about the brands and various products of that business. The disputed domain name was registered on March 10, 2020 and at the time of filing of this Complaint resolved to a website that represented it as being “Tyson Fresh Meats, Inc.” and included other information such as the Complainant’s former meat plant address and the Complainant’s other brands. The Respondent is listed with an address in Istanbul, Turkey and was initially identified as a privacy service based in the United States. 5. Parties’ Contentions A. Complainant The Complainant submits that it owns registered trade mark rights, as set out above, in the TYSON mark. It also says that it owns common law rights in its business name “Tyson Fresh Meats” as a consequence of very considerable use and promotion over many decades. It notes that the disputed domain name wholly incorporates the Complainant’s registered TYSON mark and its business name “Tyson Fresh Meats” (but omits the letter “s”) and that as a consequence the disputed domain name is confusingly similar to its registered trade mark and business name. As far as rights or legitimate interests are concerned the Complainant says that the Respondent is not affiliated with it in any way and that it has not licensed, endorsed, sponsored, or authorised the Respondent to use the Complainant’s name “Tyson Fresh Meats” or its TYSON trade mark or any other brand owned by the Complainant. Neither, says the Complainant, has it authorised the Respondent to register or use the disputed domain name or to post any information about the Complainant or its brands on the website at the disputed domain name. The Complainant notes that its business has been known as “Tyson Fresh Meats” for around 20 years and therefore it is very unlikely that the Respondent is known by that name. It also adds that the Complainant was the former owner of the disputed domain name and that the Respondent registered it following its non-renewal by the Complainant. The Complainant notes that at the time of filing of this Complaint, the disputed domain name actively re-directed to a website under the name “Tyson Fresh Meats, Inc”. The website claimed to be for “Halal Frozen chicken wholesale suppliers, Manufacturers & Distributors. Poulty suppliers USA, Frozen pork meat suppliers A Grade, Export High Quality Frozen Pork Meat”. It offered for sale frozen chicken, beef, pork, duck and turkey. It listed under contact information the Complainant’s former meat plant address of 1600 S Pine Industrial Rd # 3, Norfolk, NE 68701. In the “Our Brands” section, it listed brands of the Complainant’s “Tyson’s Fresh Meats” business, including IBP TRUSTED EXCELLENCE, CHAIRMAN’S RESERVE MEATS, OPEN PRAIRIE and, STAR RANCH ANGUS, together with various other brands of the Complainant Tyson Foods’ other food brands, such as REUBEN, JIMMY DEAN, HILLSHIRE FARM, BALL PARK BRAND, SARA LEE, SINCE 1922 WRIGHT BRAND, LADY ASTER, BOSCO’S, AIDELLS, MEXICAN ORIGINAL, STATE FAIR BRAND, RUSSER and BONICI. The website contained no disclosure of the Respondent’s relationship with the Complainant. The Complainant submits that due to the degree of use and of renown attaching to the TYSON mark the Respondent must have been aware of its business and mark when it registered the disputed domain name in 2020. It says further that the mere registration of a domain name incorporating such a well-known mark creates a presumption of bad faith and that in any event the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s name “Tyson Fresh Meats” and TYSON marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website in terms of paragraph 4(b)(iv) of the Policy. In addition, the Complainant says that the Respondent’s use of a domain privacy company to hide its true identity and the use of false address details which do not appear to identify a specific address in Istanbul are further indicative of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has demonstrated that it owns United States trade mark registration number 1748683 for the word mark TYSON registered on January 26, 1993. The disputed domain name wholly incorporates the Complainant’s distinctive TYSON registered mark together with the descriptive expression “fresh meat”. As a consequence, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trade mark rights and the Complaint succeeds under this element of the Policy. B. Rights or Legitimate Interests The Complainant has submitted that the Respondent is not affiliated with it in any way and that it has not licensed, endorsed, sponsored, or authorised the Respondent to use the Complainant’s name “Tyson Fresh Meats” or its TYSON trade mark or any other brand owned by the Complainant. Neither, says the Complainant, has it authorised the Respondent to register or use the disputed domain name or to post any information about the Complainant or its brands on the website at the disputed domain name. It has also noted that its business has been known as “Tyson Fresh Meats” for around 20 years and therefore it is very unlikely that the Respondent is known by that name. The Complainant has suggested that the Respondent is not known by this name and has rather acted opportunistically by registering the disputed domain name following the non-renewal by the Complainant. It submits that the Complainant has previously used the disputed domain name to divert Internet users to its own website which essentially masquerades as if it is the Complainant’s own website or is at least associated with it. Not only is the website presented under the name “Tyson Fresh Meats, Inc” of the United States but it offers for sale frozen meat and poultry products and uses a former meat plant address of the Complainant’s as the contact address and in various respects mimics elements of the Complainant’s website including by listing the Complainant’s brands and by reproducing at least one photograph that appears on the Complainant’s current website at “www.tysonfreshmeats.com”. The website contains no disclosure of the Respondent’s relationship with the Complainant and indeed there would appear to be no authorised relationship. Using the disputed domain name to attempt to divert Internet users and to confuse them that they are arriving at the Complainant’s website is not bona fide or legitimate conduct. Accordingly, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. In circumstances that the Respondent has offered no explanation for this conduct, the Panel finds that the Complaint also succeeds under this element of the Policy. C. Registered and Used in Bad Faith The disputed domain name was registered by the Respondent in 2020 after the Complainant allowed it to lapse. As noted above, it contains both the Complainant’s TYSON registered trade mark and its business name “Tyson Fresh Meats”, although without the plural “s”. In circumstances that TYSON is a distinctive mark that is very well reputed through long and international use and as noted above under Part B, that the Respondent has used the disputed domain to divert to a website that attempts to masquerade as belonging to or being associated with the Complainant, the Panel infers that the Respondent was well aware of the Complainant’s business when it registered the disputed domain name. The Panel accepts the Complainant’s submission that use of the disputed domain name by the Respondent, as described under Part B above, to divert Internet users to a website that purports to belong to the Complainant amounts to intentionally attempting to divert for commercial gain, Internet users to a competing third party’s website by creating a likelihood of confusion with the Complainant’s mark as to the affiliation or sponsorship of that website in terms of paragraph 4(b)(iv) of the Policy and that this amounts to evidence of registration and use of the disputed domain name in bad faith. The Panel’s view of the Respondent’s bad faith is only reinforced by the fact that it has used a privacy service and appears to have provided false address details in Istanbul for the disputed domain name. For these reasons, the Panel finds that the Complaint also succeeds under this 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 Alistair Payne
Sole Panelist
Date: June 20, 2020
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