The Complainant is Tyson Foods, Inc., United States of America, represented by Reed Smith LLP, United States of America (“United States” or “US”).
The Respondent is 杨智超 (Zhichao Yang), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 24, 2021. On December 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 29, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 29, 2021, providing the 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 in English on December 30, 2021.
On December 29, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On December 31, 2021, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on January 4, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 24, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 25, 2022.
The Center appointed Karen Fong as the sole panelist in this matter on February 3, 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 BackgroundThe Complainant is a major international food production company headquartered in the United States established since 1935. It had a USD 43 billion sales turnover in 2020 with more than 139,000 employees world- wide.
The Complainant has been using the trade marks TYSON and TYSON FOODS in connection with its food products and business since 1958. The earliest trade mark registration for TYSON submitted in evidence under US Trade Mark Registration No 1,205,623 dates back to August 17, 1982 (the “Trade Mark”).
The Complainant maintains its online presence with its portfolio of domain names including
The Respondent, who is based in China, registered the Domain Name on November 10, 2021. The Domain Name resolves to a website with pay-per-click links (the “Website”). The Respondent has been the named respondent in more than 48 UDRP cases which relate to domain names corresponding to the distinctive trade marks belonging to other trade mark owners, which have resulted in orders for the domain names to be transferred. These include Comerica Inc. v. Zhichao Yang / Whois Privacy Protection Service, Inc., Whois Agent,WIPO Case No. D2013-1184; Comerica Incorporated v. Zhichao Yang / Whois Privacy Protection Service, Inc., Whois Agent,WIPO Case No. D2013-1184; Nat’l Grid Elec. Transmission PLC and Ngrid Intellectual Prop. Ltd. v. Zhichao Yang,WIPO Case No. D2015-2339, among others.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to the Trade Mark, that the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. GeneralAccording to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to trade marks or service marks in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith.
The Rules, paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese.
The Complainant submits that the language of the proceeding should be English for the following reasons:
- the Domain Name is in English and the Website is also in English indicating the Respondent’s awareness of the English language;
- many of the prior UDRP proceedings against the Respondent have been conducted in the English language;
- the Complainant would be put to great expense and inconvenience to have to translate the Complaint and its evidence in Chinese, which would cause undue delay.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel accepts the Complainant’s submissions regarding the language of the proceeding. The Respondent has not challenged the Complainant’s request and in fact has failed to file a response. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In this case, the Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that all of the communications from the Center to the Parties were transmitted in both Chinese and English. In all the circumstances, the Panel determines that English be the language of the proceeding.
C. Identical or Confusingly SimilarThe Panel is satisfied that the Complainant has established that it has registered rights to the Trade Marks.
The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name.
In this case, the Domain Name consists of the Complainant’s Trade Mark TYSON in its entirety together with the words “foods” and “carreer”. The Trade Mark TYSON is clearly recognizable in the Domain Name. The addition of the words “foods” and misspelling of the word “career” with “carreer”, in the Domain Name do nothing to prevent a finding of confusing similarity. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) which in this case is “.com”. It is viewed as a standard registration requirement (section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The Panel finds that the Domain Name is confusingly similar to the Trade Mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
D. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate non commercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainant contends that the Respondent is not commonly known by the Domain Name. It has not authorised, licensed or otherwise permitted the Respondent to use the Trade Marks in the Domain Name or for any other purpose. Further, the display of pay-per-click links in this manner does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use of the Domain Name.
The Panel finds that the Complainant has made out a prima facie case, a case calling for a reply from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
E. Registered and Used in Bad FaithTo succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Trade Mark when it registered the Domain Name given the fame of the Trade Mark and the fact that the Trade Mark was registered prior to registration of the Domain Name. Further, the Domain Name includes the word “foods” which is descriptive of the Complainant’s products and services and is also part of the Complainant’s corporate and business name.
In the WIPO Overview 3.0, section 3.2.2 states as follows:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”
The fact that there is a clear absence of rights or legitimate interests nor any explanation for the Respondent’s choice of the Domain Name are also significant factors to consider (as stated in section 3.2.1 of the WIPO Overview 3.0). In light of the above, the Panel finds that the Respondent deliberately registered the Domain Name in bad faith.
The Panel also finds that the actual use of the Domain Name is in bad faith. The Website is a pay-per-click site which had been set up for the commercial benefit of the Respondent. It is highly likely that web users when typing the Domain Name into their browser, or finding them through a search engine would have been looking for a site operated by the Complainant rather than the Respondent. The Domain Name is likely to confuse Internet users trying to find the Complainant’s official website. Such confusion will inevitably result due to the incorporation of the Trade Mark as the most prominent element of the Domain Name.
The Respondent employs the fame of the Trade Mark to mislead users into visiting the Website instead of the Complainant’s. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent’s Website is that of or authorised or endorsed by the Complainant. The Panel therefore also concludes that the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.
In addition to the above, the Respondent has a record of registering domain names which correspond to the marks of third party brand owners, as outlined above. The Panel has in fact rendered a number of decisions against the Respondent including: Corning Incorporated v. 杨智超 (Zhichao Yang)WIPO Case No. D2021-4227, and CenterPoint Energy, Inc. v. 杨智超 (Zhichao Yang)WIPO Case No. D2021-4046. The above is clear evidence indication that it is engaged in a pattern of bad faith conduct (section 3.1.2 of WIPO Overview 3.0). The Panel therefore concludes that the Domain Name was registered and is being used 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 Domain Name
Karen Fong
Sole Panelist
Date: February 20, 2022