Complainant is Tyson Foods, Inc, United States of America, represented by Reed Smith LLP, United States of America (“United States”).
Respondent is Contact Privacy Inc. Customer 12411225822 / Tyson Food Inc., United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 29, 2021. On November 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 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 Complainant on December 1, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 6, 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 Respondent of the Complaint, and the proceedings commenced on December 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2022. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 12, 2022.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on January 24, 2022. 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 BackgroundComplainant, Tyson Foods, Inc., is a food production company and processor and marketer of chicken, beef and pork around the world. Complainant has used the name TYSON FOODS for its business for decades and the name and mark TYSON in connection with its food products since 1958. Complainant owns a number of trademarks registrations for the TYSON mark in connection with its food products globally and of particular relevance to this proceeding in the United States, including, by way of example, several United States registrations for the TYSON word mark (Registration Nos. 1,749,683, 2,810,231, 2,833,874, 2,868,632, 3,204,061 and 3,998,223), the earliest of which issued to registration on January 26, 1993.
Complainant owns, has used, and continues to use multiple domain names for websites providing information regarding Complainant and its food products. For example, Complainant owns and uses the domain name
The disputed domain name was registered on October 4, 2021. Respondent appears to be unknown as the information disclosed by the Registrar shows that Respondent registered the disputed domain name using a typosquatted iteration of Complainant’s name and address (but using a different telephone number and email address). Respondent appears to have used the disputed domain name for emails that purport to emanate from employees of Complainant concerning food product orders and purchases. Complainant sent a takedown notice to the Registrar on October 18, 2021 and the hosting and other services for the disputed domain name were thereafter deactivated. Currently, the disputed domain name does not resolve to an active website or page.
5. Parties’ Contentions A. ComplainantComplainant maintains that it has strong rights in its TYSON mark and the TYSON FOODS name and mark by virtue of its longstanding use of such and on account of its numerous trademark registrations for the TYSON mark that predate the registration of the disputed domain name.
Complainant argues that the disputed domain name is confusingly similar as it copies Complainant’s corporate name TYSON FOODS and fully incorporates the TYSON mark. Complainant further argues that the inclusion of the abbreviation “inc.” (for “incorporated”) does not distinguish the disputed domain and actually increases the confusion as Complainant is an “incorporated “ entity.
Complainant contends that Respondent has no rights or legitimate interest in the disputed domain name as Respondent (i) is not connected or affiliated with Complainant, (ii) has never been licensed by Complainant to use the TYSON mark or TYSON FOODS name; (iii) is not known by the disputed domain name, (iv) has not used the disputed domain name for any bona fide or legitimate purpose, (iv) has registered the disputed domain by impersonating Complainant, and (iv) has in fact used the disputed domain in furtherance of a fraud through emails impersonating employees of Complainant for solicitations regarding product orders.
Lastly, Complainant asserts that Respondent has registered and used the disputed domain name in bad faith as Respondent did so to knowingly take advantage of Complainant’s well-known TYSON mark. Complainant further asserts that Respondent’s bad faith is established by the fact that Respondent opportunistically registered the disputed domain name that mimics Complainant’s name in order to perpetuate a fraud by impersonating Complainant and disseminating fraudulent correspondence.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsUnder paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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 SimilarOwnership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See section 1.2.1. of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Complainant has provided evidence that it owns trademark registrations for and has used the TYSON mark in connections with food products and services well before Respondent registered the disputed domain name. Complainant has also provided evidence of the use of the corporate name TYSON FOODS sufficient to show that it owns some unregistered trademark rights in the name for purposes of the Policy in connection with its food products.
With Complainant’s rights in the TYSON and TYSON FOODS marks established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain such as “.com,” “.org” and “net”) is identical or confusingly similar with Complainant’s marks. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s TYSON mark as TYSON is clearly identifiable in the disputed domain name. The addition of the word “foods” and abbreviation “inc” does not prevent a finding of confusing similarity as the mark TYSON is clearly visible in the disputed domain name. The disputed domain name is also confusingly similar to Complainant’s TYSON FOODS mark as TYSON FOODS is clearly identifiable in the disputed domain name. The addition of the abbreviation “inc” does not prevent a finding of confusing similarity as TYSON FOODS is clearly visible in the disputed domain name. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its trademark rights and in showing that the disputed domain name is confusingly similar to these.
B. Rights or Legitimate InterestsUnder paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Based on the evidence submitted the Panel can readily conclude that Respondent does not have rights or legitimate interests in the disputed domain name. Apart from the fact that Respondent has no trademark rights in, and is not commonly known by, the TYSON mark or TYSON FOODS mark/name, Respondent has sought to impersonate Complainant by registering the disputed domain name with a typo of Complainant’s corporate name and using Complainant’s actual address. Moreover, Respondent has not made any legitimate noncommercial or fair use of the disputed domain name, but instead has used the disputed domain name as part a fraudulent scheme to likely trick unsuspecting businesses into making payments or disclosing personal information. In that regard, Respondent has sent emails based on the disputed domain name that appear to come from an employee of Complainant. Such attempts by Respondent to pass itself off as Complainant for a fraudulent scheme does not, and cannot, confer rights or legitimate interests on Respondent. See WIPO Overview 3.0 at section 2.13.1 (“Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.”).
In sum, given that Complainant has established with sufficient evidence that it owns rights in the TYSON mark and TYSON FOODS mark/name, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
C. Registered and Used in Bad FaithThe Panel finds that based on the evidence submitted, Complainants has established that Respondent has registered and used the disputed domain name in bad faith pursuant to paragraph 4(b) of the Policy.
Here, Respondent has registered and used the disputed domain name to impersonate Complainant and to send emails in furtherance of a fraudulent scheme directed at Complainant’s customers or others. Such actions constitute clear evidence of bad faith. WIPO Overview 3.0 at section 3.4. The fact that Respondent has registered the disputed domain name by essentially using Complainant’s “Tyson Foods Inc,” name, and has even gone so far as using Complainant’s information to register the disputed domain name, underscores Respondent’s bad faith. See, e.g.., Flowers Foods, Inc. and Flowers Bakeries Brands, LLC v. Withheld for Privacy, Privacy service provided by Withheld for Privacy ehf / Name Redacted, WIPO Case No. D2021-2276. Banco Bradesco S.A. v. Fernando Camacho Bohm,WIPO Case No. D2010-1552. Simply put, the evidence before the Panel, none of which is contested by Respondent, establishes that Respondent opportunistically and in bad faith registered and used the disputed domain name to profit from the TYSON mark at the expense of Complainant. The fact that the disputed domain name currently resolves to an inactive website or page does not prevent a finding of bad faith given its use for emails.
The Panel thus finds that the third element of paragraph 4(a) of the Policy has been met by Complainant.
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
Georges Nahitchevansky
Sole Panelist
Date: February 7, 2022