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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Tyson Foods, Inc. v. Super Privacy Service LTD c/o Dynadot / Zhichao

Case No. D2020-0883

1. The Parties

The Complainant is Tyson Foods, Inc., United States of America (“United States”), represented by Loeb & Loeb, LLP, United States.

The Respondent is Super Privacy Service LTD c/o Dynadot, United States / Zhichao, China.

2. The Domain Name and Registrar

The disputed domain name <tysonfoodjobs.com> is registered with Dynadot, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2020. On April 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 11 and 15, 2020, 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 April 17, 2020, 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 April 20, 2020.

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 April 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 13, 2020.

The Center appointed Taras Kyslyy as the sole panelist in this matter on May 22, 2020. 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 world and the second largest processor and marketer of chicken, beef, and pork in the world. The Complainant had more than USD 42 billion in sales in 2019, is a member of the S&P 500, and has more than 141,000 employees at facilities and offices in the United States and around the world.

The Complainant owns multiple United States trademark registrations for the TYSON trademark, including registration No. 1,748,683, registered on January 26, 1993.

The Complainant also maintains an active Internet presence and maintains Internet websites at domain names incorporating its name and TYSON trademarks, including, but not limited to <tyson.com>, <tysonfoods.com>, <tysonfoodsjobs.com>, and <tysonfoodscareers.com>.

The disputed domain name was registered on March 26, 2020 and resolves to a website containing pay‑per‑click links to unaffiliated third-party websites promoting, inter alia, third-party employment services unrelated to the business of the Complainant.

5. Parties’ Contentions

A. Complainant

The disputed domain name is identical or confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s name and marks TYSON and TYSON FOODS in their entirety (albeit without the “s” at the end of the term “foods”) with the addition of non-distinctive generic or descriptive terms “food” and “jobs” and the generic Top-Level Domain (“gTLD”) “.com”.

The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not related to, affiliated or connected with the Complainant in any way. The Complainant also has never licensed or authorized the Respondent to use its name or TYSON trademark, or to register any domain name incorporating its name or TYSON trademark. In the absence of any license or permission from the Complainant to use its well-known name or TYSON marks, no actual or contemplated bona fide or legitimate use of the disputed domain name could reasonably be claimed. The Respondent’s use of the disputed domain name constitutes an intent, for commercial gain, to misleadingly divert Internet users and potential employees to a website with a gateway for links to other websites (unaffiliated with the Complainant). The disputed domain name <tysonsfoodjobs.com> is a misspelling of the Complainant’s active domain name <tysonfoodsjobs.com> that provides information to the Complainant’s prospective employees. Accordingly, the disputed domain name might lure unsuspecting individuals seeking information about employment opportunities with the Complainant. By mistyping the Complainant’s name and landing on the Respondent’s website, these persons will be diverted to unaffiliated third party websites promoting unaffiliated employment services. There is no evidence that the Respondent has been known by the names “Tyson,” “Tyson Food”, or “Tyson Foods”.

The disputed domain name was registered and is being used in bad faith for several reasons: (1) mere registration of a domain name that is confusingly similar to a famous trademark by an unaffiliated entity can by itself create a presumption of bad faith; (2) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s famous name and TYSON trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website; (3) the Respondent knew of the Complainant’s rights in the TYSON trademark prior to registration of the disputed domain name; and (4) the Respondent has engaged in a pattern or abusive domain name registration.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in its registered trademark.

According to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), the applicable gTLD in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Thus, the Panel disregards the gTLD “.com” for the purposes of the confusing similarity test.

According to section 1.7 of the WIPO Overview 3.0, in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The Panel finds that in the present case the disputed domain name incorporates the Complainant’s trademark.

According to section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The Panel finds that in the present case the addition of descriptive words “food” and “jobs” does not negate confusing similarity.

Considering the above the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name.

Furthermore, the Respondent provided no evidence that it holds right or legitimate interest in the disputed domain name.

The Respondent is not commonly known by the disputed domain name, which could demonstrate its right or legitimate interest (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe, WIPO Case No. D2008-0642).

The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong, WIPOCase No. D2014-1875).

According to section 2.9 of the WIPO Overview 3.0 the use of a domain name to host a parked page comprising pay-per-click links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users. The Panel finds this applies to the present case.

Considering the above, the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

At the time of the registration of the disputed domain name the Respondent knew, or at least should have known, about the existence of the Complainant’s prior registered and known trademark, which confirms the bad faith (see, e.g., The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113).

According to section 3.1.4 of the WIPO Overview 3.0 the mere registration of a domain name that is identical or confusingly similar to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Panel is convinced that the Complainant’s trademark is well established through long and widespread use and the Complainant has acquired a significant reputation and level of goodwill in its trademark both in the United States and internationally. Moreover, it defies logic that incorporating the Complainant’s mark with the terms “food” and “jobs” would be done without reference to and hence knowledge of the Complainant. Thus, the Panel finds that the disputed domain name which is confusingly similar to the Complainant’s trademark was registered in bad faith.

According to paragraph 4(b)(iv) of the Policy the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location. In this case, the disputed domain name confusingly similar to the Complainant’s trademark is used to capitalize on the Internet users’ efforts to find the Complainant and its website and seek employment opportunities with the Complainant. The disputed domain name diverts these consumers to a gateway website that contains content that is wholly unrelated to the Complainant and provides links to unaffiliated third-party websites promoting third-party services. The Panel finds the above confirms the disputed domain name was registered and used in bad faith.

Considering the above, the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under paragraph 4(a)(iii) of the Policy.

7. Decision

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 <tysonfoodjobs.com> be transferred to the Complainant.

Taras Kyslyy
Sole Panelist
Date: June 5, 2020

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