Complainant is Tyson Foods, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.
Respondent is Work Institute, workinstitutetof, United States. 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 25, 2020. On July 27, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 28, 2020, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July 31, 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 August 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 24, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 25, 2020. The Center appointed Richard W. Page as the sole panelist in this matter on August 31, 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 largest food production companies in the world. 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. Complainant’s history dates back to 1935. Complainant is operating and has operated its business under the name “Tyson Foods” for decades. Complainant has operated it business under the “Tyson Foods” name as a publicly traded company since 1963. Complaint has been using the TYSON trademark in connection with its food products since as early as 1958. Complainant has expanded is use of TYSON trademark and other marks incorporating TYSON to various foods products and to related products and services. The TYSON Marks shall be collectively referred to herein as the “Marks”. Complainant has spent significant sums advertising and promoting the Marks. Complainant owns numerous registrations of the Marks in the United States and in many foreign jurisdictions, including, but not limited to, Canada and the United States. See, for example, United States Registration No. 1,205,623, registered August 17, 1982, and United States Registration No. 5,776,218, registered June 11, 2019. These registrations are valid, subsisting and in full force and effect. Most of the United States registrations have attained incontestable status, meaning that the registrations are conclusive evidence of Complainant’s ownership in and exclusive right to use the Marks and are conclusive as to the validity of the Marks in the United States. Complainant also maintains an active Internet presence and maintains Internet websites at domain names incorporating the Marks, including, but not limited to, Complainant’s websites serve as a primary marketing and informational tool for Complainant and as a primary point of communication between Complainant and its customers. The Disputed Domain Name was registered on June 19, 2020. The Complainant has provided evidence that while the Disputed Domain Name does not resolve to an active website, the Disputed Domain Name has been used in connection with a fraudulent email scheme. 5. Parties’ Contentions A. Complainant Complainant contends that the Disputed Domain Name is confusingly similar to the Marks. Complainant further contends that the Disputed Domain Name incorporates the entirety of the Marks with the addition of the non-distinctive or descriptive terms “food” and “services” and the generic Top-Level Domain (“gTLD”) “.com”. Complainant asserts that such descriptive terms and required gTLD do not affect the confusing similarity of the Disputed Domain Name with the Marks. Complainant further contends that it sent Respondent a demand letter on July 13, 2020, via mail and email, asserting rights in the Marks and demanding that Respondent immediately transfer ownership of the Disputed Domain Name to Complainant. Complainant has also attempted contact by telephone. No response has been received from Respondent. Complainant alleges that the Disputed Domain Name currently resolves to a website with the sign “This Website is Under Construction”. Complainant has discovered that Respondent is using an email address associated with the Disputed Domain Name (“Infringing Email Address”) to perpetrate a fraudulent scheme to lure individuals seeking employment opportunities with Complainant to reply to fake job listings for career positions allegedly available with Complainant’s Canadian subsidiary, Tyson Foods Canada, Inc. Complainant has been notified by a victim of such scam that an individual posed as a “General Manager” at Tyson Foods Canada, Inc. and used Tyson Foods Canada Inc.’s name and address, Complainant’s website at “www.tyson foodservice.com”, and the Infringing Email Address while collecting personal information from unsuspecting individuals replying to fake job postings for Complainant’s Canadian subsidiary. Complaint’s investigation uncovered two such fake job postings where Respondent is posing as Complainant on job boards. Complainant is further alleging Respondent is using Complainant’s name and the Infringing Email Address on these fake job postings. Complainant asserts that Respondent is not affiliated with Complainant in any way. At no time has Complainant licensed or otherwise endorsed, sponsored, or authorized Respondent to use Complainant’s famous name or the Marks. Complainant alleges that use of the Disputed Domain Name is not bona fide given the fraudulent schemes trying to “phish” personal information from prospective employees. Complainant further alleges that there is no evidence that Respondent has used the name “Tyson Foods” or the Marks before registration of the Disputed Domain Name on June 19, 2020. Complainant further alleges that there is no evidence that Respondent has been commonly known by the names “Tyson”, “Tyson Food”, or “Tyson Food Services”. The name of Respondent is Work Institute and Respondent’s organization is “workinstituteof”. Complainant contends that Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Infringing Email Address, by creating a likelihood of confusion with the Marks. Complainant further contends that Respondent knew of Complainants rights in the Marks prior to registration of the Disputed Domain Name. Complainant further asserts that Respondent registered and used the Disputed Domain Name in a scheme to perpetrate a fraud. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.” Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Paragraph 4(a) of the Policy directs that Complainant must prove each of the following: i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to the Marks in which Complainant has rights; and ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Complainant contends that the Disputed Domain Name is identical with and confusingly similar to the Marks pursuant to paragraph 4(a)(i) of the Policy. Complainant further contends that it has numerous registrations of the Marks. Section 1.2.1 of the WIPO Overview 3.0 states that registration of a trademark is prima facie evidence of Complainant having enforceable rights in the Marks. Respondent has not contested these allegations. Therefore, the Panel finds that Complainant has enforceable trademark rights in the Marks for purposes of this proceeding. Complainant contends that the Disputed Domain Name is confusingly similar to the Marks. Complainant further contends that the Disputed Domain Name incorporates the entirety of the Marks with the addition of the non-distinctive or descriptive terms “food” and “services” together with the gTLD “.com”. Complainant asserts that such descriptive terms and required gTLD do not affect the confusing similarity of the Disputed Domain Name with the Marks. See section 1.7 of the WIPO Overview 3.0 , which says that inclusion of the entire trademark in a domain name will be considered confusingly similar. Also, see section 1.8 of the WIPO Overview 3.0 , which instructs that the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not prevent a finding of confusing similarity. Also, see Section 1.11.1 of the WIPO Overview 3.0 , which instructs that gTLDs, such as “.com”, may be disregarded for purposes of assessing confusing similarity. Respondent has not contested the assertions by Complainant that the Disputed Domain Name is confusingly similar to the Marks. Therefore, the Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant contends that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy. Section 2.1 of the WIPO Overview 3.0 states that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interests of a Respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Name. Where Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in Disputed Domain Name: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Disputed Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are 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 Marks. Complainant asserts that Respondent is not affiliated with Complainant in any way. At no time has Complainant licensed or otherwise endorsed, sponsored, or authorized Respondent to use Complainant’s famous name or the Marks. Complainant asserts that Respondent is using the Disputed Domain Name and Infringing Email Address to perpetrate a fraud against Internet users interested in employment with Complainant’s Canadian subsidiary. Complaint further asserts that such use of the Disputed Domain Name trying to “phish” personal information from prospective employees cannot be bona fide or a legitimate noncommercial or fair use. Complainant further claims that there is no evidence that Respondent has used the name “Tyson Foods” or the Marks before registration of the Disputed Domain Name on June 19, 2020. Complainant further alleges that there is no evidence that Respondent has been commonly known by the names “Tyson”, “Tyson Food”, or “Tyson Food Services”. The name of Respondent is Work Institute and Respondent’s organization is “workinstituteof”. The Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interest in the Disputed Domain Name. Respondent has not contested these allegations. Therefore, the Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of the Disputed Domain Name: (i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the Marks or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or (ii) you [Respondent] have registered the Disputed 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 you have engaged in a pattern of such conduct; or (iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Disputed Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the Marks as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product. Complainant contends that the confusing similarity of the Disputed Domain Name to the Marks and the use of the Infringing Email Address to “phish” for personal information and to lure potential employees of Complainant to fraudulent sites satisfies paragraph 4(b)(iv). The Panel finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Infringing Email Address and to false employment boards, by creating a likelihood of confusion with the Marks. Therefore, Complainant has satisfied the requirements of paragraph 4(b)(iv) and paragraph 4(a)(iii) 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 Richard W. Page
Sole Panelist
Date: September 8, 2020
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