WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tyson Foods, Inc. v. Privacydotlink Customer 3479421 / Nathan Cole
Case No. D2018-0073
1. The Parties
The Complainant is Tyson Foods, Inc. of Springdale, Arkansas, United States of America, represented by Winston & Strawn LLP, United States.
The Respondent is Privacydotlink Customer 3479421 of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland / Nathan Cole of Hempstead, New York, United States.
2. The Domain Name and Registrar
The disputed domain name <tysonhalalfrozenchicken.com> is registered with Uniregistrar Corp (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 12, 2018. On January 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 16, 2018, 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 the Complainant on January 18, 2018 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 on January 22, 2018.
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 of the Complaint, and the proceedings commenced on January 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 13, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 14, 2018.
The Center appointed William F. Hamilton as the sole panelist in this matter on February 21, 2018. 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 Background
The Complainant is one of the largest food production companies in the United States with worldwide operations. The Complainant has more than 113,000 employees at facilities and offices in the United States and around the world. The Complainant owns the mark TYSON (the "Mark") which has been registered in the United States since August 17, 1982. The Complainant has maintained business operations utilizing the Mark since that date and also operates the website "www.tysonfoods.com". The Complainant has registered the Mark in Hong Kong, China, Singapore, Viet Nam, and the Republic of Korea. See Tyson Foods, Inc., v. Bargin Register, Inc., WIPO Case No. D2011-1622 (transferring <tysonfoodsemployment.com>).
The disputed domain name was registered on October 12, 2017. The disputed domain name resolves to a website featuring the Complainant's Mark, offering frozen chicken for sale.
5. Parties' Contentions
The Complainant asserts that the disputed domain name is confusingly similar to the Complainant's Mark because the disputed domain name incorporates Complainant's TYSON mark in full, changing TYSON mark only by adding the descriptive terms "halal", "frozen", and "chicken" and the generic top-level domain ("gTLD") ".com". The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name because the Respondent has not conducted any bona fide business utilizing the Mark and the Complainant has not authorized nor licensed the Respondent to use the Complainant's Mark. The Complainant further contends the disputed domain name was registered and is being used to deceive unsuspecting Internet consumers and lure them to Respondent's website for commercial purposes.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds the disputed domain name is confusingly similar to the Mark. The disputed domain name wholly incorporates the Mark and merely adds two descriptive terms plus the immaterial gTLD ".com". See Tyson Foods, Inc., v. Bargin Register, Inc., supra; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 ("[T]he fact that a domain name wholly incorporates a Complainant's registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks").
The Complainant has met its burden of proof under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel finds the Respondent has no rights or legitimate interests in the disputed domain name. The use of the disputed domain name that confusingly similar to the Complainant's Mark does not establish a bona fide service offering. See E.J. McKernan Co. v. Texas International Property Associates, WIPO Case No. D2007-1499. Notably, even if the website at the disputed domain name were offering the Complainant's products for sale, the website gives a misleading impression that it is the website of the Complainant, when in reality there is no relationship between the Parties. The Respondent has failed to respond to the Complainant, and there is no evidence that the Respondent is commonly known by the Mark or the disputed domain name. The Complainant has specifically disavowed providing the Respondent with any authorization or license to the use the Mark.
The Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds the disputed domain name was registered and used in bad faith. A cursory Internet or trademark search by the Respondent would have revealed the Mark and the Complainant's business operations. Moreover, it is inconceivable that the proprietor of a website selling poultry related products would be ignorant of one of the world's largest distributors of such products. Lastly, the disputed domain name was obviously stitched together to mislead consumers into believing that the disputed domain name would resolve to the Complainant's website. Indeed, the disputed domain resolves to a website prominently featuring the Complainant's Mark. The Respondent has thus attempted to divert the Complainant's customers and prospective customers for the Respondent's own commercial gain.
The Complainant has met its burden of proof under paragraph 4(a)(iii) of the Policy.
For 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 <tysonhalalfrozenchicken.com> be transferred to the Complainant.
William F. Hamilton
Date: March 5, 2018