The Complainant is Tyson Foods, Inc., United States of America, represented by Reed Smith LLP, United States of America.
The Respondent is Privacy service provided by Withheld for Privacy ehf, Iceland / Hoc Tap Tot, Jayse, Australia.
2. The Domain Name and Registrar(s)The disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2021. On July 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 August 2, 2021 providing 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 August 6, 2021.
The Center verified that the Complaint together 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 August 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 2, 2021.
The Center appointed Peter Burgstaller as the sole panelist in this matter on September 10, 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 BackgroundThe disputed domain name
The Complainant is a leading food production company; it holds numerous trademark registrations for TYSON, registered from 1982 onwards, e.g., United States of America trademark (figurative) registration TYSON, No 1,205,623, registered on August 17, 1982; and United States of America trademark (word) registration TYSON, No 1,748,683, registered January 26, 1993 (Annex 5 to the Complaint). The Complainant’s company name is Tyson Foods, Inc.
In addition, the Complainant owns several domain names incorporating the name and mark TYSON FOODS and TYSON, e.g.
The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register a domain name incorporating its TYSON trademark or the company name Tyson Foods.
The disputed domain name is used to impersonate the Complainant and redirect visitors to an imposter website (Annex 7 to the Complaint).
5. Parties’ Contentions A. ComplainantThe 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. The Complainant’s history dates back to 1935. It is operating and has operated its business under the TYSON FOODS name as a publicly traded company since 1963.
The Complainant has been using the registered trademark TYSON in connection with its food products since at least as early as 1958. It has expanded its use of the registered trademark TYSON and other marks incorporating TYSON to various foods products and related products and services. The Complainant has spent significant sums advertising and promoting its name and mark TYSON FOODS and TYSON. As a result of the Complainant’s extensive marketing efforts and sales success, it has developed significant goodwill in the TYSON FOODS name and mark and the registered trademark TYSON, which are extremely valuable corporate assets.
The disputed domain name
The Respondent is not affiliated with the Complainant in any way. At no time has the Complainant licensed or otherwise endorsed, sponsored, or authorized the Respondent to use the Complainant’s name or its famous registered TYSON marks.
The disputed domain name was registered and is being used in bad faith since it impersonates the Complainant and redirects visitors to an imposter website.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsAccording to paragraph 4(a) of the Policy, the Complainant must prove that
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant submitted evidence, which incontestably and conclusively establishes rights in the mark TYSON and TYSON FOODS.
The disputed domain name is confusingly similar to the Complainant’s registered trademark TYSON and its company name Tyson Foods, Inc, since it entirely contains this distinctive mark and company name and only adds the descriptive word “incorporated”.
It has long been established under UDRP decisions that where the relevant trademark is recognizable within the disputed domain name the mere addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) will not prevent a finding of confusing similarity under the first element of the Policy (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Finally, it has also long been held that gTLDs are generally disregarded when evaluating the confusing similarity of a disputed domain name.
The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsWhile 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 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 (see section 2.1 of the WIPO Overview 3.0). Here, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent.
Furthermore, the nature of the disputed domain name, comprising the Complainant’s mark in its entirety together with the descriptive term “incorporated”, taking advantage of the Complainant’s mark to attract Internet users to the Respondent’s website for profit and to effectively impersonate as the Complainant, can not be considered fair as these falsely suggest an affiliation with the Complainant that does not exist (see section 2.13 and 2.5 of the WIPO Overview 3.0).
Noting the above, and in the absence of any Response or allegations from the Respondent, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithAs stated in many decisions rendered under the Policy (e.g. Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001) both conditions, registration and use in bad faith, must be demonstrated; consequently, the Complainant must show that:
- the disputed domain name was registered by the Respondent in bad faith, and
- the disputed domain name is being used by the Respondent in bad faith.
(i) The Complainant is the owner of the distinctive registered trademark TYSON and the company name Tyson Foods, and has registered and used such marks long before the registration of the disputed domain name. Moreover, the Complainant registered and is using the domain names
It is inconceivable for this Panel that the Respondent registered or has used the disputed domain name without knowledge of the Complainant’s rights, which leads to the necessary inference of bad faith. This finding is supported by the fact that the disputed domain name incorporates the Complainant’s trademark TYSON and company name Tyson Foods entirely together with terms which are merely descriptive. In fact, the use of the term “incorporated” in connection with the mark TYSON and TYSON FOODS rather strengthen the impression that the disputed domain name is in some way connected to the Complainant or the Complainant’s services, in fact the Respondent impersonates as the Complainant and free rides on the reputation of the Complainant and its name and distinctive mark.
Therefore, the Panel is convinced that the disputed domain name was registered in bad faith by the Respondent.
(ii) The disputed domain name is also being used to impersonate the Complainant and redirect visitors to an imposter website that not only contains copyrighted text and images from Complainant’s actual website, but also other registered brands owned by Complainant. Therefore, the disputed domain name is being used in bad faith.
The Respondent registered and used the disputed domain name to take unfair advantage of the reputation of the Complainant’s trademark TYSON and company name Tyson Foods, and in so doing to disrupt the Complainant’s business and to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s trademark and company name as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
On the basis of these facts and findings, the disputed domain name was registered and is being used in bad faith according to paragraph 4(a)(iii) of the Policy.
7. DecisionFor 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 Burgstaller
Sole Panelist
Date: September 17, 2021