The Complainant is Tyson Foods, Inc., United States of America (the “United States”), represented by Reed Smith LLP, United States.
The Respondent is Privacy Service Provided by Withheld for Privacy ehf, Iceland / Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2021. On August 20, 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 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 August 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2021.
The Center appointed George R. F. Souter as the sole panelist in this matter on September 29, 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 Complainant is one the largest food production companies in the world. Since at least 1958 it has sold its products under its TYSON trademark, and its trade name TYSON FOODS. In 2020, its turnover was over USD 43 billion. It currently has more than 139,000 employees at facilities in the United States and around the world.
Details of numerous registrations of the Complainant’s TYSON trademarks have been supplied to the Panel. These include United States registration number 1748681, registered on January 26, 1995. Details of extensive use of its TYSON trademark and its TYSON FOODS trade name have also been provided to the Panel.
The disputed domain name was registered on March 12, 2021, and is currently inactive.
5. Parties’ Contentions A. ComplainantThe Complainant alleges that the disputed domain name is confusingly similar to its TYSON trademark and its TYSON FOODS trade name/trademark.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that there is no evidence that the Respondent is generally known by the disputed domain name, and that the Complainant has never granted permission to the Respondent to use its TYSON trademark or its TYSON FOODS trade name/trademark in connection with a domain name registration, or otherwise.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(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 in respect of 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 Panel finds that the Complainant has sufficient rights to its TYSON trademark for the purposes of these proceedings.
The Panel is satisfied by the evidence presented by the Complainant that the long and extensive use of the Complainant’s TYSON FOODS trade name as a distinctive identifier of the Complainant’s products will have resulted in the acquisition of considerable common law trademark rights in TYSON FOODS for the purposes of the Policy. The Panel finds that these acquired common law trademark rights to the TYSON FOODS combination are sufficient for the purposes of these proceedings.
It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the gTLD “.com” to be irrelevant in the circumstances of the present case, and so finds.
The disputed domain name contains sufficiently recognizable aspects of the TYSON and TYSON FOODS trademarks. The Panel considers that the disputed domain name is confusingly similar to the Complainant’s TYSON and TYSON FOODS trademark, and so finds. See section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0).
Accordingly, the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsIt is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel regards it as self-evident that the Complainant’s TYSON trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, and so finds.
Since the decision in Telstra Corporation v. Nuclear Marshmallows,WIPO Case No. D2000-0003, it has become well-established in prior decisions under the Policy that the mere lack of present use of a domain name found to have been registered in bad faith does not avoid a finding of bad faith use of a disputed domain name, if a complainant has a legitimate concern that any commencement of use of a disputed domain name would be likely to damage the complainant’s interests as owner of a confusingly similar trademark. In this circumstances of the present case, the Panel considers that any use of the disputed domain name would be likely to imply an unjustifiable connection with the Complainant, and that the Complainant has a legitimate concern in this regard. Accordingly, the Panel finds that the disputed domain name is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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
George R. F. Souter
Sole Panelist
Date: October 13, 2021