Complainant is Tyson Foods, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.
Respondent is Domain Administrator, PrivacyGuardian, United States / Telesphore TETA, Cameroon. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2020. On May 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 15 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 Complainant on May 26, 2020 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 May 30, 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 Respondent of the Complaint, and the proceedings commenced on June 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 23, 2020. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 24, 2020. The Center appointed Peter Wild as the sole panelist in this matter on June 29, 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 Complainant is one of the world’s largest food production companies, active in the United States and around the world. It dates back to 1935. Complainant is the owner of numerous registered TYSON trademarks such as TYSON Reg. No. 1748683 of January 26, 1993 in the United States or TYSON Reg. No. 71161 of January 29, 1993 in Poland for a range of goods including food products in class 29. Complainant also owns a number of international trademarks with the element TYSON and a device mark with TYSON (in oval) which it uses with a red background and yellow frame. The expression “tyson food” has been used by Complainant for many years as a trademark and trade name. Complainant uses a number of domain names, including The Disputed Domain Name According to Complainant, the Disputed Domain Name is confusingly similar to Complainant’s trademark TYSON as it is included in its entirety. The addition of the generic term “foods” and country indication “pl” is not sufficient to escape the finding that the Disputed Domain Name is confusingly similar to the trademark TYSON, as they do not change the overall impression of the designation. It does not prevent the likelihood of confusion between the Disputed Domain Name and Complainant’s trademark. Complainant furthermore claims that Respondent has no own rights or legitimate interest in the term “tyson”, and that the Disputed Domain Name has been filed and is used in bad faith, copying the graphics and logo of Complainant, attracting Internet users by abusing Complainant’s well-known trademark for commercial gain. Respondent had filed the Disputed Domain Name under a privacy service, hiding its real identity, and after the privacy shield was lifted, an address in Cameroon which apparently does not exist, was revealed. According to Complainant, Respondent thereby abused the domain name registration process. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Disputed Domain Name contains, in its entirety and prominently, Complainant’s trademark TYSON. The added term “foods” is purely descriptive for Complainant’s industry and the term “pl” is a geographic identifier. Complainant has also been using the term “tyson foods” in commerce for many years. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Edition 3.0 (“WIPO Overview 3.0”) Section 1.8 provides that “Where the relevant trademark is recognizable within the Disputed Domain Name, the addition of other terms […] would not prevent a finding of confusing similarity under the first element”. In line with this, the Panel decides that the Disputed Domain Name is confusingly similar to Complainant’s trademark TYSON. The Panel also finds that the Disputed Domain Name is confusingly similar to Complainant’s TYSON FOOD trademark. The first condition of the Policy is met. B. Rights or Legitimate Interests Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests, see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. If Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. There is no reason to believe that Respondent’s name somehow corresponds with the Disputed Domain Name, and Respondent does not appear to have any trademark rights associated with the terms “tyson” or “tysonfoods”. See VUR Village Trading No. 1 Limited t/a Village Hotels v. Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2019-1596. Respondent is not identified in the WhoIs database as “tyson” or “tysofoods” or even “tysonfoodspl”. From the available record, there is no evidence that Respondent is commonly known by the Disputed Domain Name. The Panel therefore finds under paragraph 4(a)(ii) of the Policy that Respondent is not commonly known by the Disputed Domain Name. According to Complainant, Respondent is not affiliated with nor authorised by Complainant in any way to use the trademark TYSON. Furthermore, the website under the Disputed Domain Name uses graphics that are almost identical to Complainant’s trademark and seems to be active in the food business which would establish a direct competition to Complainant. Respondent did not claim any rights or legitimate interests, as it did not file a response at all. Based on these facts, the Panel holds that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and the second condition of the Policy is met. C. Registered and Used in Bad Faith Given the distinctiveness of Complainant’s trademarks and reputation at the time of the registration for the Disputed Domain Name, it is reasonable to infer that Respondent has registered the Disputed Domain Name with full knowledge of Complainant’s trademarks, constituting opportunistic bad faith, especially as Respondent added the term “foods” which Complainant also uses to describe its business and forms part of some of its trademarks. Respondent also uses a graphic/color set up in red and yellow which is almost identical to Complainant’s graphic for the device mark TYSON (oval). The Panel finds it hard to see any other explanation that Respondent knew Complainant’s well-known trademarks. See Ferrari S.p.A v. American Entertainment Group, Inc,WIPO Case No. D2004-0673 and Revlon Consumer Products Corporation v. Terry Baumer,WIPO Case No. D2011-1051. Furthermore, Respondent reproduces Complainant’s trademark and graphic elements on its website and is promoting competing products and services at the Disputed Domain Name. From this it is obvious that Respondent knew of Complainant and its trademarks at the time when it registered the Disputed Domain Name. In addition, panels have earlier found that a mere registration of a domain name that is confusingly similar to a famous trademark can by itself create a presumption of bad faith. Prior panels found the Complainant’s name and marks TYSON FOODS and TYSON famous. See, e.g., Tyson Foods, Inc. v. Bargin Register, Inc.,WIPO Case No. D2011-1622; Tyson Foods, Inc. v. Desheng Zhao,WIPO Case No. D2014-1382. Therefore, Respondent’s mere registration of the Disputed Domain Name consisting of Complainant’s famous name and mark TYSON FOODS and TYSON Marks plus the descriptive terms “foods” and “pl” constitutes bad faith. Seealso WIPO Jurisprudential Overview 3.0, section 3.1.4. The Panel therefore concludes that the Disputed Domain Name was registered in bad faith. It is also obvious to the Panel that Respondent has intentionally attempted to attract, for commercial purposes, Internet users to its website by creating a confusion with Complainant’s trademarks. Indeed, upon arriving at Respondent’s website, Internet users seeing Complainant’s trademarks are likely to think that they are at Complainant’s website, or at least that the services being promoted are affiliated to Complainant. Respondent used the Disputed Domain Name to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s famous name and mark. Specifically, Respondent has acquired and is commercially using the Disputed Domain Name that is identical or confusingly similar to Complainant’s name and mark TYSON FOODS and TYSON Marks to capitalize on the Internet users’ efforts to find Complainant, its website and seek information about Complainant and its products and services. All this has the effect of abusing the goodwill of Complainant. Respondent is deliberately creating confusion with Complainant. Furthermore, Respondent used a privacy service, possibly to avoid being notified of a UDRP proceeding filed against it. Panels tend to find that this supports an inference of bad faith. WIPO Jurisprudential Overview 3.0, section 3.6. Therefore, Respondent’s use of a domain privacy company services to hide its true identity while clearly misusing Complainant’s prior intellectual property rights in an effort of avoiding a UDRP proceeding is additional evidence of bad faith. See, e.g., Reservoir Capital Group, LLC v. Ahmed Omolabi,WIPO Case No. D2019-3105. Finally, Respondent provided an incorrect or at least incomplete address when registering the Disputed Domain Name. Complainant’s investigation of Respondent’s address suggests that this address is either incomplete or incorrect. As further evidence of this, the Panel sees that the courier service used by the Center to serve the Complaint could not find the indicated address. This fact can also be considered a further inference of bad faith registration. Altınkaynak Kuyumculuk ve Mücevherat A.Ş. v. Artem Rakhno,WIPO Case No. D2016-2368. For these reasons, the Panel holds that the Disputed Domain Name was registered and used in bad faith and the third condition of the Policy is met. 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 Peter Wild
Sole Panelist
Date: July 6, 2020
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