The Complainant is Tyson Foods, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.
The Respondent is Proxy Protection LLC, United States / Michael Gates, 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 April 27, 2021. On April 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 28, 2021, 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 29, 2021 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 April 30, 2021. 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 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 23, 2021. The Center appointed Nicolas Ulmer as the sole panelist in this matter on July 4, 2021. 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 The Complainant is a large publicly listed company based in the United States; it is a well-known and important processor and marketer of food products, particularly poultry and meat. The Complainant employs more than 100,000 people, and in 2020 had sales in excess of USD 43 billion. According to the Complaint, the Complainant has operated under the name Tyson’s Foods since the 1930s. The Complainant owns numerous trademarks for the mark TYSON in various combinations, designs, and permutations, and submits an Annex with evidence of at least ten such trademark registrations in the United States. For example, the Complainant owns United States Reg. No. 1,205,623 for TYSON and design, registered on August 17, 1982, and United States Reg. No. 1,748,683 for TYSON, registered on January 26, 1993. The Complaint also demonstrates that the Complainant has an active Internet presence, including active sites using the word combination “tysonfoods” via domain names such as Little is known about the Respondent whose identity was initially shielded by a domain name privacy service, but who in the Amended Complaint is identified as an individual residing in the United States. The disputed domain name was registered on March 21, 2021. The disputed domain name does not resolve to an active website, however, the Complainant has provided evidence that the disputed domain name has been used in connection to a fraudulent scheme. 5. Parties’ Contentions A. Complainant The Complainant contends that the dispute domain name is confusingly similar to its trademarks, in which it has built up a large amount of goodwill. The Complainant further asserts that the Respondent is not affiliated with it and has no right or legitimate interests in the disputed domain name. The Complainant then contends that the disputed domain name can only have been registered and used in bad faith, notably because the Respondent knew of the Tyson name and marks at the time of registration and the disputed domain name was subsequently used for illegal and fraudulent activities. The Complainant thereupon requests that the disputed domain name be transferred to it. Facts and assertions in the Complaint are further discussed in Section 6, below, where necessary or appropriate. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The disputed domain name begins with and contains the entirety of the Complainant’s TYSON trademark; the addition of the word “foods” in the disputed domain name describes the Complainant’s core business and mimics its well-known name, creating rather than diminishing confusion with the Complainant’s trademarks. The further addition of the letters “incs”, may be an attempt to suggest “inc.”, an abbreviation for “incorporated”. In any event none of the words added to the Complainant’s trademark in the disputed domain name prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademarks. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. Paragraph 4(a)(i) of the Policy is accordingly proven. B. Rights or Legitimate Interests The Complainant makes clear that it has no knowledge or good faith belief that the Respondent has any rights or legitimate interest in the disputed domain name, and that the Complainant has not licensed or granted permission to the Respondent to use its trademarks. It is furthermore obvious that the Respondent is not known by the name “tysonsfoodsincs”. The file in this matter contains no indication that the Respondent has used the disputed domain name in connection with a bona fide offering of goods and services or that there is any legitimate noncommercial or fair use of the Complainant’s trademark, and the Complainant denies that this could be the case. It is well-established in UDRP case law and jurisprudence that a complainant needs to demonstrate at least a prima facie case that the respondent has no rights or legitimate interests in respect of the disputed domain name see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Where such a prima facie case is made, the burden shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy see also, Meizu Technology Co., Ltd. v. “osama bin laden”,WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo,WIPO Case No. D2014-0225. In the instant case the Respondent has not answered the Complaint and the Complainant has established at least such a prima facie case; the Complainant has therefore met its burden of proof under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel largely agrees with the Complainant’s assertion that the “[…] mere registration of a domain name that is confusingly similar to a famous trademark by an unaffiliated entity by itself creates a presumption of bad faith”. The Complainant has demonstrated the renown of its well-established name and trademark, and here it is clear that the Respondent could not here have registered the disputed domain name by chance or serendipity. It is difficult to see how the disputed domain name could be used for a good faith purpose. Moreover, the Complainant has submitted evidence that, shortly after its registration, the disputed domain name was used to set up email addresses and send emails imitating the Complainant to potential vendors in an apparent effort to defraud them. This activity provoked the Complainant to contact the Registrar of the disputed domain name and request that it be disabled; the Registrar complied with this request and the website corresponding to the disputed domain name was disabled on April 16, 2021. In light of the above, the Complainant has met its burden of demonstrating bad faith registration and use of the disputed domain name within the meaning of 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 Nicolas Ulmer
Sole Panelist
Date: July 13, 2021
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