Complainant is Tyson Foods, Inc., United States of America (“United States” or “U.S.”), represented by Reed Smith LLP, United States.
Respondent is Raymond Peters, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on December 14, 2021. On December 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 16, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing contact information and other details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 7, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 27, 2022. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 10, 2022.
The Center appointed Debra J. Stanek as the sole panelist in this matter on February 23, 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 is a food production company that processes and sells chicken, beef, and pork. It owns several trademark registrations for the mark TYSON, including U.S. Reg. No. 1,205,623, registered on August 17, 1982. Complainant also claims rights in the common law mark TYSON FOODS and owns the domain name
The disputed domain name
Complainant claims rights in the marks TYSON and TYSON FOODS going back decades and long predating registration of the disputed domain name. Complainant also operates Internet websites that incorporate use the terms “tyson” and “tysonfoods”.
The disputed domain name is confusingly similar to Complainant’s distinctive TYSON and TYSON FOODS marks inasmuch as it incorporates the two marks in their entirety. Complainant maintains that the addition of “incorps” is a reference to the fact that Complainant is incorporated.
B. Rights or Legitimate InterestsComplainant has satisfied its burden of showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent is not affiliated with and has not been authorized or licensed by Complainant to use Complainant’s TYSON or TYSON FOODS marks or to register the disputed domain name. Complainant does not carry out any activity for, or have any business with, Respondent. There is no evidence that Respondent is using (or could use) the disputed domain name in connection with a bona fide offering of goods or services or is making a legitimate noncommercial or fair use.
C. Registered and Used in Bad FaithRespondent registered and is using the disputed domain name in bad faith.
Registration of a confusingly similar disputed domain name creates a presumption of bad faith due to the fame of Complainant’s mark. Respondent knew of Complainant’s rights in the TYSON and TYSON FOODS marks and is passively holding the disputed domain name.
Respondent had actual knowledge of Complainant’s mark.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsTo prevail, a complainant must prove, as to the domain name at issue, that: (a) it is identical or confusingly similar to a mark in which the complainant has rights, (b) respondent has no rights or legitimate interests in respect to it, and (c) it has been registered and is being used in bad faith. Policy, paragraph 4(a).
The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b). A respondent’s failure to respond to a complaint does not automatically result in a finding for the complainant who continues to have the burden of establishing each element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3. The Panel may, however, draw such inferences from Respondent’s default as appropriate. See Rules, paragraph 14(b).
A. Identical or Confusingly SimilarComplainant has established its rights in the mark TYSON through the evidence of its trademark registrations.
The disputed domain name is not identical to Complainant’s registered mark. A side-by-side comparison (disregarding the Top-Level Domain) suggests that the TYSON mark is nonetheless readily recognizable in the disputed domain name. See WIPO Overview 3.0, section 1.7 (indicating the test for confusing similarity typically involves assessing whether the textual elements of the mark are “recognizable within the disputed domain name”). The disputed domain name differs from Complainant’s registered TYSON mark only by the addition at the end of the terms “food” and “incorps”. The additional terms do not, in the Panel’s view, prevent a finding of confusing similarity between the disputed domain name and Complainant’s TYSON mark.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
B. Rights or Legitimate InterestsThe Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing, under Paragraph 4(c) of the Policy. See WIPO Overview 3.0, section 2.1(once complainant makes a prima facie case, the burden of production shifts to respondent).
The Panel finds that Complainant has made a prima facie showing under this element. Respondent appears to be an individual; the WhoIs record does not suggest that “tyson” or “tyson foods” is part of his name or that Respondent is commonly known by the disputed domain name. The disputed domain name combines Complainant’s well-known mark with other terms that reinforce – incorrectly – the idea that there is a connection with Complainant. See WIPO Overview 3.0, section 2.5.1. This supports Complainant’s assertion that, even though the disputed domain name does not seem to be in use, Respondent could not legitimately adopt the disputed domain name for a fair or other legitimate purpose.
Respondent has not responded to the Complaint and has not rebutted Complainant’s prima facie showing. The Panel concludes that Complainant has established that Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithComplainant must establish that the disputed domain name was registered and is being used in bad faith.
The Panel finds that Complainant’s mark is well-known and long predates registration of the disputed domain name. Given that the disputed domain name combines Complainant’s mark with the term “food”, which corresponds both to Complainant’s corporate name and, more broadly, to Complainant’s industry, and “incorps”, which appears to be a reference to “incorporation”, it seems most probable that Respondent was aware of Complainant and its mark and registered the disputed domain name with Complainant in mind. Respondent has not provided any evidence of good faith use which, in any case, appears to be quite implausible. The Panel finds that Respondent’s non-use does not preclude a finding of bad faith, consistent with the consensus view. See WIPO Overview 3.0, section 3.3.
Considering these facts, including the adverse inferences that arise from Respondent’s failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith.
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
Debra J. Stanek
Sole Panelist
Date: March 10, 2022