WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tyson Foods, Inc. v. Intdomain / Apexed
Case No. D2014-1316
1. The Parties
The Complainant is Tyson Foods, Inc. of Arkansas, United States of America, represented by Winston & Strawn LLP, United States of America.
The Respondent is Intdomain / Apexed of Burgenland, Austria.
2. The Domain Name and Registrar
The disputed domain name <tysonfoods.org> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 4, 2014. On August 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 5, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 20, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 10, 2014.
The Center appointed Jane Lambert as the sole panelist in this matter on September 15, 2014. 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 incorporated in the state of Delaware in the United States of America and has its principal place of business in Springdale, Arkansas, which is also in the United States of America. The Complainant is one of the largest food processing companies in the United States of America and the world. It is the second largest food processing company in the Fortune 500 and is also in the Standard & Poor 500. It employs approximately 115,000 persons in more than 400 facilities and offices around the world.
The Complainant has carried on business in the name or style of "Tyson Foods" for several decades and has used the sign TYSON as a trade mark since 1958. It registered that sign as a trade mark with the United States Patent and Trademark Office for meat and poultry products in class 29 and for snack foods (namely tortilla and tortilla chips) in class 30 under registration number 1,748,683 on January 26, 1993. The Complainant has registered the word TYSON as a trade mark for other goods and services in the United States of America and annexed copies of some of its other registrations to the Complaint.
Nothing is known of the Respondent other than its name and address. The Complainant has searched for but found no evidence that the Respondent is in the food industry or that it trades under, or is known by, a name that is the same as, or similar to, the disputed domain name. The Complainant has annexed to its Complaint a screen dump of the page that appeared when its representatives keyed "tysonfoods.org" into a web browser which reveals a parking page with what appear to be sponsored links or searches some to the Complainant and others to other food and non-food products and services. The Panel tried to find out whether that page is still being used but a blank page appeared when she keyed "tysonfoods.org" and "www.tysonfoods.org" into her browser.
5. Parties' Contentions
The Complainant claims the transfer of the disputed domain name on the grounds that the disputed domain name is confusingly similar to the Complainant's registered trade mark and trade name or trading style mentioned above, that the Respondent has no rights or legitimate interests in the disputed domain name and that its use as the URL for the page that appeared in the annexed screen dump is evidence that the Respondent registered and has used the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Respondent's agreement with the Registrar incorporates the Policy paragraph 4(a) of which provides:
"You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present."
If, but only if, the Panel finds each and every one of the above-mentioned elements to be present, the Panel may order the cancellation of the registration or transfer of the disputed domain name to the Complainant.
A. Identical or Confusingly Similar
The registered trade mark mentioned in above is a trade mark in which the Complainant has rights. The disputed domain name incorporates the Complainant's trade mark in its entirety with the addition of the word "foods" which connotes meat, poultry products and other kind of foods and, therefore, exacerbates the confusing similarity between the Complainant's trade mark and increases the risk of confusion. Further, TYSON FOODS is the Complainant's trade name or trading style. The Panel finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights. Accordingly, the first element of the Policy is proved.
B. Rights or Legitimate Interests
Although the Complainant has to prove that each of the three elements mentioned in paragraph 4(a) of the Policy is present, it is enough for it to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy lists a number of circumstances that could indicate that the Respondent has such rights or legitimate interests. The Complainant has addressed all those possibilities but found no evidence that any of them applies. In the absence of any evidence from the Respondent that it has a right or legitimate interest in the disputed domain name, the Panel has to conclude that the Respondent has none and that the second element of the Policy is proved.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances, which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. One of those circumstances is set out in paragraph 4(b)(iv):
"by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
The Panel has already found that the disputed domain name is confusingly similar to the Complainant's trade mark. Internet users might reasonably suppose that the disputed domain name is owned by or somehow associated with the Complainant and that it would be used for a site through which the Complainant's products may be purchased or information about those products or the Complainant such as job vacancies might be obtained. The disputed domain name has been used as a URL for a parking page with sponsored links or searches. No doubt an Internet user would be disabused of the impression that the URL was connected with the Complainant once he or she had landed on that page and he or she might well turn back but equally at least some of those users would be tempted to click one or more of the sponsored links or searches from which "commercial gain" would be obtained. The Panel finds that the Respondent's use of the disputed domain name falls within Paragraph 4(b)(iv) and that the disputed domain name was registered and has been used in bad faith. The third element of the Policy is therefore proved.
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 <tysonfoods.org> be transferred to the Complainant.
Date: September 30, 2014