The Complainant is Tyson Foods, Inc., United States of America, represented by Loeb & Loeb, LLP, United States of America (“United States”).
The Respondent is tim garry, Timm, Uganda. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 5, 2020. On November 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 6, 2020, 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 November 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 1, 2020. The Center appointed Zoltán Takács as the sole panelist in this matter on December 11, 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. The language of this administrative proceeding is English, that being the language of the registration agreement. 4. Factual Background The Complainant, whose history dates back to 1935, is one of the largest food production companies in the world and processor and marketer of chicken, beef and pork. The Complainant has operated its business under the Tyson Foods name as a publicly traded company since 1963 and is a member of the S&P 500. The Complainant owns numerous trademark registrations consisting of or comprising the term TYSON, including the United States Trademark Registration No. 1748683 for the word mark TYSON registered since January 26, 1993 for goods of class 29 of the Nice Agreement concerning the international classification of goods and services for the purpose of the registration of marks. Since May 26, 2000, the Complainant owns the domain name The disputed domain name was created on November October 19, 2020 and redirects to the Complainant’s own website. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name that fully incorporates its TYSON trademark is confusingly similar to it. The only difference between the disputed domain name and the Complainant’s trademark is addition of the words “food” and “group”, which are either generic or descriptive of the Complainant’s food products or the Complainant’s corporate structure. The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name and is unable to rely on any of the circumstances set out in paragraphs 4(c)(i), (ii), or (iii) of the Policy. The Complainant claims that the disputed domain name was registered and is being used in bad faith. The Respondent obviously knew of its TYSON trademark at the time of acquiring the disputed domain name and is commercially using it to redirect to the Complainant’s own website. The Complainant requests that the disputed domain name be transferred from the Respondent to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. It has been a consensus view in UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). A complainant must establish each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that; (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Under paragraph 4(a)(i) of the Policy, there are two requirements which the Complainant must establish, first that it has rights in a trademark or service mark, and second that the disputed domain name is identical or confusingly similar to the trademark or service mark. It has been a consensus view among UDRP panels that if the complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights. The Complainant produced evidence of having registered rights in the TYSON trademark. For the purpose of this administrative proceeding the Panel finds that the United States Trade Mark Registration No. 1748683 for the word mark TYSON satisfies the requirement of having trademark rights for the purpose of the Policy. The Panel next assesses whether the disputed domain name is identical or confusingly similar to the Complainant’s trademark. According to section 1.7 of the WIPO Overview 3.0, the standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name. This test typically involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. The TYSON trademark is clearly recognizable in and is the dominant element of the disputed domain name, with addition of the words “food” and “group”, terms which describe the Complainant’s food products and its corporate structure. According to section 1.8 of the WIPO Overview 3.0, 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. According to section 1.11.1 of the WIPO Overview 3.0, the 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 generally disregarded under the first element confusingly similar test. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s TYSON trademark and that requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests Under paragraph 4(c) of the Policy, a respondent may demonstrate its rights or legitimate interests in a domain name by showing any of the following circumstances, in particular but without limitation: (i) its use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; (ii) it has been commonly known by the domain name; (iii) it is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue. In the present case, the Complainant has submitted sufficient and uncontested evidence that it holds The Respondent has never been authorized to use the TYSON trademark in any way, and the Complainant’s prior rights in the TYSON trademark precede the date of registration of the disputed domain name. According to section 2.1 of the WIPO Overview 3.0, 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 the 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 Respondent failed to respond, and by doing so failed to offer the Panel any type of evidence set forth in paragraph 4(c) of the Policy, or otherwise counter the Complainant’s prima facie case. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists a number of factors which, if found by the panel to be present, shall be evidence of registration and use of a domain name in bad faith. This non-exclusive list includes: (i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you 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 complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location. The evidence presented by the Complainant convinces the Panel that the Respondent has registered and is using the disputed domain name in bad faith. According to section 3.1.4 of the WIPO Overview 3.0, the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The disputed domain name incorporates the Complainant’s TYSON trademark. Previous UDRP panels have found that the Complainant’s TYSON trademark is well established through long a widespread use and that the Complainant has acquired a significant reputation and level of goodwill in its TYSON trademark both in the United States and internationally (See Tyson Foods, Inc. v. Bargin Register, Inc. - Client Services,WIPO Case No. D2011-1622; Tyson Foods, Inc. v. Super Privacy Service LTD c/o Dynadot / Zhichao,WIPO Case No. D2020-0883). The disputed domain name redirects to the Complainant’s own website “www.tysonfoods.com”. According to section 3.1.4 of the WIPO Overview 3.0, a respondent redirecting a domain name to the complainant’s website can establish bad faith insofar as the respondent retains control over the redirection thus creating a real or implied ongoing threat to the complainant. Noting the above discussed facts and circumstances the Panel determines that Respondent has registered and is using the disputed domain name in bad faith in accordance with 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 Zoltán Takács
well-established rights in the TYSON trademark for the purposes of the first element of the Policy.
Sole Panelist
Date: December 24, 2020
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