The Complainant is Tyson Foods, Inc., United States of America (“United States”), represented by Reed Smith LLP, United States.
The Respondent is Rick Matthews, Uganda.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2021. On September 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 4, 2021, 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 October 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 27, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2021.
The Center appointed Dawn Osborne as the sole panelist in this matter on December 8, 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 the owner of the trade mark TYSON, registered, inter alia, as trade mark no. 1748683 in the United States for foodstuffs since at least 1993.
The Domain Name registered in 2021 is being used for competing pay per click links.
5. Parties’ Contentions A. ComplainantThe Complainant is the owner of the trade mark TYSON, registered, inter alia, in the United States for foodstuffs since at least 1993.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark adding only the generic term “inc”, the letter “o” and a generic top level domain (“gTLD”) “.com” which do not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
On September 23, 2021, the Complainant states it discovered that someone was impersonating the Complainant’s senior director of procurement, on WhatsApp, and using an email address associated with the Domain Name to disseminate fraudulent Tyson-branded purchase orders. (However, no actual evidence of this use has been submitted with this Complaint.) This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is bad faith registration and use diverting Internet consumers for commercial gain.
The Domain Name is currently being used for commercial pay per click links including links related to the food industry not connected with the Complainant.
B. RespondentThe Respondent did not file a Response in these Proceedings.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Domain Name in this Complaint combines the Complainant’s TYSON mark (registered in the United States for foodstuffs since 1993), the generic term “inc”, the letter ‘o’ and the gTLD “.com”.
The addition of a generic term, a letter of the alphabet and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. The addition of the generic term ”inc”, the letter “o” and the gTLD “.com” does not prevent confusing similarity between the Domain Name and the Complainant’s TYSON mark, which is still clearly recognisable in the Domain Name.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
B. Rights or Legitimate InterestsThe Complainant has not authorised the use of its TYSON mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name.
The Complainant notes the allegation of the Complainant that the Domain Name has been used for fraudulent purposes, however no actual evidence of this use has been presented in this Complaint.
The Respondent has used the site attached to the Domain Name for competing pay per click links which is not a bona fide offering of goods and services or a legitimate noncommercial or fair use.
The Respondent has not filed a Response in these proceedings and so has not produced any evidence of rights or legitimate interests.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
C. Registered and Used in Bad FaithThe Domain Name has been used for competing commercial pay per click links which is confusing and disruptive in that visitors to the site might reasonably believe products offered on that site are connected to or approved by the Complainant.
The Complainant’s mark is distinctive for foodstuffs and the use of links related to the Complainant on the Respondent’s site shows that the Respondent has knowledge of the Complainant and its rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the website or products or services offered on it. This is also likely to disrupt the business of the Complainant.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb 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 Domain Name
Dawn Osborne
Sole Panelist
Date: December 14, 2021