WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Tyson Foods, Inc. v. Desheng Zhao

Case No. D2014-1382

1. The Parties

The Complainant is Tyson Foods, Inc. of Springdale, Arkansas, United States of America ("US"), represented by Winston & Strawn LLP, US.

The Respondent is Desheng Zhao of Wenzhou, Zhejiang, China.

2. The Domain Name and Registrar

The disputed domain name <tysonfoods.net> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 14, 2014. On August 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 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 for the disputed domain name. However, the Center noted that the reply from the Registrar with respect to the Respondent's contact information was inconsistent with the information provided in the WhoIs database. As such, the Center sent an email communication to the Registrar to seek clarification. On August 25, 2014, the Registrar reverted to the Center with the information that disputed domain name is registered under the name of 邹三妹 (Zou Sanmei) with the relevant contact information. On August 25, 2014, the Center noted that the registrant of the disputed domain name had changed from "Desheng Zhao" to "Zou Sanmei" and based on this new information, the Center sought further clarifications from the Registrar with regard to the actual date and time of the transfer of the disputed domain name's registrant from "Desheng Zhao" to "Zou Sanmei" and a confirmation that the disputed domain name had been henceforth locked and would remain locked throughout the entire period of this administrative proceeding. On the same day, the Registrar replied to confirm that the change in registrant's name took place on August 22, 2014 at 19:43:50 and that the disputed domain name had remained locked. As the Complaint was received by the Center on August 14, 2014, the Center informed the Registrar on August 25, 2014 that the change in the registrants' name and the contact details contravenes paragraph 8(a) of the Policy and as such, the Center requested for the name and the contact details of the registrant to be restored from "Zou Sanmei" to "Desheng Zhao". On August 26, 2014, the Registrar confirmed that the name of the registrant of the disputed domain name has been restored back to "Desheng Zhao" but with the contact information remained the same as the one the Center received from the Registrar on August 21, 2014.

The Center sent an email communication to the Complainant on August 27, 2014 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 August 29, 2014.

On August 26, 2014, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On August 26, 2014, the Center received an email from the Respondent in which he indicated that he did not understand English. On August 29, 2014, the Center received the Complainant's request for English to be the language of the proceeding from the Complainant by email.

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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 5, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 25, 2014. The Response was filed with the Center on September 25, 2014. In response to the Respondent's Response, the Complainant filed an Additional Submission by way of Supplemental Filing on October 21, 2014.

The Center appointed Susanna H.S. Leong as the sole panelist in this matter on October 7, 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.

It has been necessary for the Panel to extend the decision due date to November 4, 2014.

4. Factual Background

The Complainant is one of the largest food production companies in the US and throughout the world. It is the second-largest food production company in the Fortune 500, is a member of the S&P 500, and has approximately 115,000 employees at more than 400 facilities and offices in the US and around the world. The Complainant has operated its business under the TYSON FOODS name as a publicly traded company since 1963. The Complainant owns multiple trademark registrations for the TYSON trademark with the United States Patent and Trademark Office ("USPTO") in connection with the marketing of its food products, including US Reg. No. 1,748,683, issued January 26, 1993; US Reg. 2,810,231, issued February 3, 2004; US Reg. No. 2,833,874, issued April 20, 2004; US Reg. No. 2,868,632, issued August 3, 2004; US Reg. No. 3,204,061, issued January 30, 2007; US Reg. No. 3,483,381, issued August 12, 2008; and US Reg. No. 3,998,293, issued July 19, 2011. The Complainant has used the TYSON trademark since at least as early as 1958.

The Complainant operates a website accessible at the "www.tysonfoods.com". On its website, the Complainant prominently uses the trademarks TYSON and TYSON FOODS, and features general information regarding its various food products.

The disputed domain name was registered on May 9, 2014.

5. Parties' Contentions

A. Complainant

First, the Complainant asserts that the disputed domain name is identical or confusingly similar to its marks based on the following reasons:

1. The Complainant owns a valid and incontestable US federal trademark registration for TYSON, demonstrating the Complainant's rights in the TYSON mark under paragraph 4(a)(i) of the Policy.

2. The domain name that the Respondent has registered and has used is <tysonfoods.net>. The disputed domain name incorporates Complainant's TYSON and TYSON FOODS marks in full, changing the famous and federally registered TYSON mark only by adding the descriptive terms "foods" and the generic Top-Level Domain ("gTLD") ".net."

3. Numerous panel decisions have found that the mere addition of a gTLD and descriptive or generic terms to a complainant's mark fails to produce a domain name distinct from the complainant's mark.

4. The addition of the word "foods" actually increases the confusing similarity to the TYSON mark because the word "foods" has a direct relevance to Complainant's business, such that consumers would assume that the domain name refers to the Complainant's business activities.

Second, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name on the following grounds:

1. The Respondent registered the disputed domain name <tysonfoods.net>, which misappropriates and is confusingly similar to the Complainant's TYSON and TYSON FOODS marks, without the Complainant's authorization or consent.

2. The Respondent is not commonly known by the disputed domain name, has not used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services, has not been authorized, licensed, or otherwise permitted by the Complainant to register and/or use the disputed domain name.

3. On the contrary, the Respondent has used the disputed domain name to redirect consumers to a website featuring links to third-party websites that are unrelated to the business of the Complainant.

4. The pertinent WhoIs information fails to reflect that the Respondent is commonly known by the disputed domain name, constraining the Panel to conclude that the Respondent is not commonly known by the disputed name and thus lacks rights and legitimate interests in the disputed domain name.

5. Moreover, the Respondent's use of the disputed domain name does not constitute a legitimate noncommercial or fair use of the dispusted domain name. Instead, the Respondent's use of the disputed domain name constitutes an intent, for commercial gain, to misleadingly divert consumers, including those that might be seeking information about the Complainant, to a website acting as a gateway for links to other websites, including websites wholly unaffiliated with the Complainant.

Third, the Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith on the following grounds:

1. The Respondent acquired and has commercially used the disputed domain name <tysonfoods.net>, a domain name that is confusingly similar to Complainant's TYSON and TYSON FOODS marks, to capitalize on Internet users' efforts to find Complainant's website and seek information about the Complainant.

2. The Respondent has used the disputed domain name to redirect these consumers to a gateway website that contains links to other goods and services. Prior UDRP panels routinely presume that when Internet users are diverted in this manner, the respondent receives income in the form of "pay-per-click" fees. As such, The Respondent has clearly used the disputed domain name to attract the Complainant's customers for the Respondent's own commercial gain. Such efforts to attract Complainant's customers and profit from their confusion constitutes bad faith registration and use of the disputed domain name under paragraph 4(b)(iv) of the Policy.

3. The Respondent's efforts to misappropriate the Complainant's famous TYSON mark, capitalize on consumer confusion, and divert unsuspecting Internet users to third-party websites unrelated to the Complainant undoubtedly constitutes bad faith registration and use of the disputed domain name under paragraph 4(b)(iv) of the Policy.

B. Respondent

The Respondent filed an informal Response which may be summarized as follows:

1. That "Tyson" is a common name and that "foods" is a descriptive term in English. Therefore, "tysonfoods" is not uniquely created by the Complainant.

2. That at the time of registration of the disputed domain name, the Respondent was only aware of the existence of the boxing champion Mike Tyson and did not know of the existence of the Complainant and its TYSON marks. Upon receipt of the Complainant's Complaint, the Respondent conducted a search on the Internet and obtained the relevant information about the Complainant. The Respondent admits his oversight, has since deleted its entry on "Sedo.com". The Respondent contends that he has more than once communicated to the Center and the Complainant about his intention to transfer the disputed domain name to the Complainant at no cost. However, this has not been accepted by the Complainant.

3. The Respondent contends that the Complainant has insisted from the very beginning that the disputed domain name rightfully belonged to the Complainant and was of the view that it could take back the disputed domain name through legal proceedings. This was regretted by the Respondent. The Respondent was of the view that parties should only resort to legal proceedings if negotiations have failed. The Respondent stood ready to settle this matter outside legal proceedings but the Complainant was not willing.

4. The Respondent contends he has not and will not intentionally infringe others' legal rights and interests.

5. The Respondent contends that his Response has been made in accordance with the Policy and the applicable laws.

C. Complainant's Supplemental Filing

The Complainant filed an Additional Submission in rely to the Respondent's informal Response and the content is summarized as follows:

1. The Complainant seeks leave of the Panel to file the Additional Submission in this matter on the basis that paragraph 10(d) of the Rules provides the Panel the necessary discretion to consider additional submissions.

1. The Complainant contends that on October 21, 2014, the Complainant was electronically notified by the Center, that a Panel has been appointed in this proceeding but it became apparent that a Notification of Respondent Default was not sent prior to Panel appointment. Therefore, this necessitated the filing of this Additional Submission.

2. The Complainant contends that the Panel give due consideration to the Additional Submission in light of the fact that a "Zou Sanmei", a party other than the named Respondent Zhao Desheng, submitted a "Response" in this matter in the name of "Zou Sanmei".

3. As "Zou Sanmei" is not the Respondent in this matter, the Complainant submits that the Response submitted in the name of "Zou Sanmei" should be disregarded by the Panel and thus, the Respondent should be treated as being in default in this proceeding.

4. The Complainant submits that the Mr. Sanmei's mental state with respect to why the disputed domain name <tysonfoods.net> was registered and any use Mr. Sanmei may have hoped to make of the disputed domain name is irrelevant to this proceeding because the proceeding does not involve Mr. Sanmei.

5. WhoIs records confirm that it was Zhao Desheng that registered the disputed domain name in bad faith and Zhao Desheng not only used the disputed domain name to divert the Complainant's consumers to a gateway website containing links to other goods and services but also to include a prominent advertisement to sell the disputed domain name on the respective webpage. It is a fact that Zhao Desheng continues to offer the disputed domain name <tysonfoods.net> for sale for USD 1000 on "Sedo.com".

6. Whilst Mr. Sanmei's mental state is irrelevant to the present proceeding, the Complainant notes that Mr. Sanmei's claim that he was not aware of the existence of the Complainant and its TYSON marks was not plausible and should be rejected. This is because, in addition to the numerous trade mark registrations as stated in the amended Complaint, the Complainant also owns several trade mark registrations for TYSON in both English and Chinese in China.

7. The Complainant also notes that after the commencement of this proceeding, Mr. Sanmei offered to sell the disputed domain name back to the Complainant Tyson Foods as evidenced by his correspondence to the Center on September 13, 2014.

8. Despite Mr. Sanmei's assurances that the display of the offer for sale of the disputed domain name on "Sedo.com" was deleted, evidence shows that it is still being offered for sale as of October 21, 2014. This continued offer for sale constitutes clear, ongoing evidence of bad faith use and registration of the disputed domain name under the Policy.

9. Mr. Sanmei has contended that the Complainant has not accepted his purported offers to transfer the disputed domain name to the Complainant but the Complainant submits that because Mr. Sanmei is not the Respondent in this matter, the Complainant is not able to meaningfully act on those offers.

10. The Complainant notes that Mr. Sanmei has set forth no plausible reason why he or the Respondent chose to register the disputed domain name <tysonfoods.net> and use it to solicit offers for sale and divert consumers looking for the Complainant's products..

11. The Complainant contends that the Respondent has failed to file a response in this matter and Mr. Sanmei's filing should be wholly disregarded.

12. To the extent that Mr. Sanmei's filing is given any consideration, it is clear that Mr. Sanmei has failed to rebut any of the elements of the prima facie case set forth in the Amended Complaint.

6. Discussion and Findings

6.1 Procedural Matters

Before we consider the substantive contentions of the parties, it is necessary for the Panel to address the unusual procedural history of this matter:

6.1.1 Cyberflight and the restoration of the identity of the Respondent

The Panel finds that a transfer of the disputed domain name was made by the Registrar from "Desheng Zhao" to "Zou Sanmei" on August 22, 2014 at 19:43:50 after the receipt of the Complainant's Complaint on August 14, 2014. This is in contravention of paragraph 8(a) of the Policy and as such, the Registrar is obliged to restore the disputed domain name's registrant to "Desheng Zhao" which the Registrar did. Unfortunately, the Registrar did not restore the contact details of the registrant to the original information before the transfer on August 22, 2014. This has created unnecessary complications for this proceeding. It is the Registrar's responsibilities to execute proper restoration of important particulars such as the name and the contact details of the registrant when a complaint has been filed in a UDRP proceeding.

6.1.2Identification of the Respondent: "Desheng Zhao" and/or "Zou Sanmei"

The Panel is of the view that, considering all the facts of this matter, there is strong evidence which suggests that "Desheng Zhao" and "Zou Sanmei" are the same person or are related to each other. The Panel based its view on the fact that in the earlier communications between the Center, the Registrar and the Respondent/Registrant ("Desheng Zhao") on August 22, 2014 at 03:05 a.m., the email was sent by the Respondent from the email address "鹿".<[…]@qq.com>, which is not the email address belonging to "Desheng Zhao" but rather that of "Zou Sanmei". The email address stated in the "Desheng Zhao" contact details is "d."<[…]@qq.com>. The transfer of the disputed domain name from "Desheng Zhao" to "Zou Sanmei" only took place on August 22, 2014 at 19:43:50. Thereafter, the Center copied their communications to both email addresses.

On August 27, 2014, an email was sent from "d.<[…]@qq.com>" (this is the email address of "Desheng Zhao") protesting the restoration of disputed domain name to the original registrant "Desheng Zhao". Further, on August 29, 2014, another email was sent to the Center from "鹿" <[…]@qq.com]>, claiming that the disputed domain name belonged to "Zou Sanmei" and not "Desheng Zhao". If "Desheng Zhao" and "Zou Sanmei" are indeed two different entities, these email correspondences would not have happened. Considering these circumstances, the Panel is of the view that the entities "Desheng Zhao" and "Zou Sanmei" are related to each other.

6.1.3 Admission of Response and Supplemental Filings

Given the finding of the Panel in the identification of the Respondent, the Panel therefore exercises its discretion to admit the informal Response by "Zou Sanmei" and the Additional Submission by the Complainant. The Panel's decision will be based on all the relevant submissions and evidence adduced by the parties.

6.2 Language of the Proceeding

The language of the Registration Agreement for the disputed domain names is Chinese. Pursuant to Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented to the Panel, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the proceedings should be in English. The Complainant has submitted a request that English should be the language of the present proceeding for the following reasons:

1. That the website hosted at the disputed domain name is in English;

2. Furthermore, it includes an advertisement to sell the disputed domain name that is written in English; and

3. The above clearly demonstrates that the Respondent has proficiency and is able to communicate in English.

After considering the circumstances of the present case and the submission of the Complainant's request, the Panel is of the opinion that the language for the present proceeding shall be in English and the decision will be rendered in English. The Panel based its decision on the following reasons:

(i) The Panel's discretion under the Policy

Paragraph 11 of the Rules provides:

"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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."

Thus, parties may agree on the language of the administrative proceeding. In the absence of an agreement, the language of the registration agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel's discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.

(ii) The Circumstances of this Case

One important consideration is the issue of fairness to both parties in their abilities to prepare the necessary documents for this proceeding and also to respond adequately to these documents when they are served upon the parties.

In particular, the Panel notes that the material facts of this proceeding are generated in the English language. On record, the Respondent appears to be Chinese and is thus presumably not a native English speaker, but the Panel finds that persuasive evidence has been adduced by the Complainant to suggest in the interests of fairness, the language of the proceeding ought to be the English language. In particular, the Panel notes that (a) the disputed domain name is made up of letters in Ascii-Script and could be pronounced phonetically in English; (b) the website which was connected to the disputed domain name was in English; (c) the Center has notified the Respondent of the proceeding in both Chinese and English. The Respondent has filed an informal Response in Chinese and the Panel has ruled to admit the Response.

Considering these circumstances, the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.

After considering the circumstances of the present case, the Panel decides that the proceeding shall be English and the decision will be rendered in English.

6.3 Substantive Elements of the Policy

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:

1. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

2. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

3. the disputed domain name has been registered and is being used in bad faith.

Paragraph 4(a) of the Policy clearly states that the burden of proof lies with the Complainant to establish that all these three elements are satisfied in this proceeding.

Furthermore, pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.

On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Complainant has adduced evidence to demonstrate that it has registered trademark rights and continues to have such rights in the TYSON mark for food products in many countries in the world. Furthermore, the Panel finds that the Complainant has registered trademark rights in the TYSON mark in China, the country in which the Respondent appears to reside. The Panel finds that the Complainant's TYSON mark is a widely-known mark for food products offered by the Complainant.

In assessing the degree of similarity between the Complainant's trademark and the disputed domain name, the Panel shall have regard to the degree of visual, aural or conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant's mark and the disputed domain name is to be considered from the perspective of the average consumer of the goods or services concerned in this case, and the average consumer is the Internet user seeking to purchase or download information about the Complainant's products.

The disputed domain name <tysonfoods.net> is a combination of the characterizing name "tyson" and descriptive element "foods". The Panel is of the view that the most prominent and distinctive part of the disputed domain name is the term "tyson" which for all intents and purposes is identical to the Complainant's registered trademark TYSON. The Panel rules that a common name such as "tyson" can through long and substantial use gained distinctiveness. The Complainant has used the TYSON mark since as early as 1958 and has consequently gained significant goodwill and international fame in its TYSON and TYSON FOODS marks. Given the fame and notoriety of the Complainant's TYSON mark, the addition of the descriptive words such as "foods" does not provide sufficient distinction from the Complainant's mark. On the contrary, as the Complainant is the business of selling food products, the addition of the word "foods" serves to heighten the likelihood of confusion between the disputed domain name and the Complainant's TYSON mark. As for the addition of suffixes such as ".net", it is a well-accepted principle that the addition of such gTLD is not a distinguishing factor.

Bearing in mind the following factors, in particular (a) the widespread reputation and high degree of recognition of the Complainant's TYSON mark as a result of its long and substantial use; (b) the distinctive character of the Complainant's TYSON mark; and (c) the dominant component of the disputed domain name, the Panel therefore finds that the disputed domain name is confusingly similar to the TYSON mark in which the Complainant has rights.

The Panel finds for the Complainant on the first part of the test.

B. Rights or Legitimate Interests

Based on the following reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name:

(1) the Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the disputed domain name <tysonfoods.net> in its business operations;

(2) there is no evidence to show that the Complainant has licensed or otherwise permitted the Respondent to use its trademark or to apply for or use any domain name incorporating the TYSON mark;

(3) there is no indication whatsoever that the Respondent is commonly known by the disputed domain name and/or is using the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, there is evidence which shows that the Respondent is using the disputed domain name to divert the Complainant Tyson Foods' consumers to a gateway website containing links to other goods and services and displaying a prominent advertisement to offer the disputed domain name for sale;

(4) the Complainant and its TYSON mark enjoy a widespread reputation and high degree of recognition as a result of its long and substantial use in the food product sector and is a registered trademark in many countries all over the world, including China. Consequently, in the Panel's view, in the absence of contrary evidence from the Respondent, the TYSON mark is not one that the Respondent could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant.

The Panel notes the overall burden of proof on this element rests with the Complainant. However, it is well established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut the complainant's contentions. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1. Based on the above reasons, the Panel finds that the Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to the Respondent to produce evidence to rebut this presumption.

According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:

"(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

The Panel notes that the Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or evidence of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. In his Response, the Respondent did provide any plausible reasons for the choice of the disputed domain name or the use of it since the registration of the disputed domain name. It should be noted that the fact that the disputed domain name was available for registration when the Respondent registered it does not confer rights or legitimate interests to the Respondent.

In accordance with the Rules, paragraph 14, the Panel thus concludes and draws such inferences as it considers appropriate, which are that the Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent appears to be unable to adduce evidence of any rights to or legitimate interests in the disputed domain name.

The Panel finds for the Complainant on the second part of the test.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website 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 the respondent's website or location or of a product or service on the respondent's website or location.

The above circumstances are indicative of registration and use of a domain name in bad faith but they are by no means exhaustive. Evidence of other circumstances adduced before the panel can also constitute registration and use of a domain name in bad faith by a respondent in appropriate cases.

One important consideration in the Panel's assessment of whether the Respondent has registered and is using the disputed domain name in bad faith is prior knowledge on the part of the Respondent of the Complainant's rights in the trademark concerned. In this day and age of the Internet and advancement in information technology, the reputation of brands and trademarks transcend national borders. Taking into account the worldwide reputation of the Complainant and its TYSON mark, as well as the market presence of the Complainant in numerous countries including China, the Panel finds that it is highly unlikely that the Respondent would not have had actual notice of the Complainant's trademark rights at the time of the registration of the disputed domain name. Furthermore, the Complainant's brand of food products is available on the Internet via its official website "www.tysonfoods.com". A simple search on the Internet would reveal the presence of the Complainant's trademark and domain name. Therefore, the Panel finds that it is not conceivable that the Respondent would not have had actual notice of the Complainant's trademark rights at the time of the registration of the disputed domain name. Consequently, it would have been pertinent for the Respondent to provide an explanation of its choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith with intent to create an impression of association with the Complainant and its products. The Respondent did not provide any plausible explanations. In this regard, the Panel rejects the Respondent's contention that he was only aware of the boxing champion Mike Tyson at the time of the registration of the disputed domain name.

Where the Respondent has chosen to register the disputed domain name that is identical or confusingly similar to the Complainant's trademark and where the mark in question has through long and substantial use acquired worldwide fame, reputation and notoriety, a reasonable conclusion is that the mark is not one that the Respondent could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant. Thus, the burden on the Respondent to show that the choice of the disputed domain name was made legitimately and in good faith for the genuine offering of goods or services on the Internet is a very heavy one. There is no evidence that the Respondent has used or intends to use to the disputed domain name for purposes of bona fide offering of goods and services over the Internet. On the contrary, there is evidence which shows that the Respondent is using the disputed domain name to divert the Complainant's consumers to a gateway website containing links to other goods and services and displaying a prominent advertisement to offer the domain name for sale. In this regard, the Panel finds that the Respondent has not provided any plausible explanation.

The Panel finds that the Complainant has adduced evidence and proved that by using confusingly similar disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website under paragraph 4(b)(iv) of the Policy. The Panel finds that given the widespread fame of the Complainant's TYSON mark and a lack of plausible explanation for the choice of incorporating the Complainant's famous mark in the disputed domain name, the diversion of the Complainant's consumers to a gateway website containing links to other goods and services and displaying a prominent advertisement to offer the disputed domain name for sale, are certainly relevant factors indicating bad faith registration and use.

Thus, the Panel finds for the Complainant on the third part of the test.

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 <tysonfoods.net> be transferred to the Complainant.

Susanna H.S. Leong
Sole Panelist
Date: November 4, 2014