Tyson Foods, Inc. v. Bridge Port Enterprises Limited
Claim Number: FA1001001302298
Complainant is Tyson Foods, Inc. (“Complainant”), represented by John
J. Dabney, of McDermott Will & Emery LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tysonsfoodsinc.com>, registered with Name.net LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 8, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 11, 2010.
On January 13, 2010, Name.net LLC confirmed by e-mail to the National Arbitration Forum that the <tysonsfoodsinc.com> domain name is registered with Name.net LLC and that Respondent is the current registrant of the name. Name.net LLC has verified that Respondent is bound by the Name.net LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 20, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 9, 2010 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 16, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant is one of the largest food production companies
Complainant owns multiple registrations for the TYSON trademark with the United States Patent and Trademark Office (“USPTO”) in association with the marketing of its food products (including Reg. No. 1,748,683, issued January 26, 1993).
Respondent, Bridge Port
Enterprises Limited c/o
The disputed domain name resolves to a website with the single function of displaying links to various third-party websites unrelated to Complainant.
Respondent’s <tysonsfoodsinc.com> domain name is confusingly similar to Complainant’s TYSON mark.
Respondent is not commonly known by the disputed domain name.
Respondent does not have any rights to or legitimate interests in the domain name <tysonsfoodsinc.com>.
Respondent registered and uses the <tysonsfoodsinc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s trademark registration with the USPTO for the TYSON mark sufficiently establish Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007):
As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).
It is, of course, of no consequence that Complainant’s mark
registration is in the
Complainant alleges that the disputed domain name <tysonsfoodsinc.com> is confusingly similar to Complainant’s TYSON mark. The domain name incorporates Complainant’s mark in full, changing the mark only by adding an “s,” the generic terms “foods” and “inc” and the generic top-level domain (“gTLD”) “.com.” The mere addition of an “s” and of generic terms to Complainant’s mark fails to produce a domain name distinct from Complainant’s mark. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001):
[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.
See also Cream Pie Club v. Halford, FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that “the addition of an ‘s’ to the end of the complainant’s mark, ‘Cream Pie’ does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name <creampies.com> is similar in sound, appearance, and connotation”).
Similarly, the above-referenced additions, even taken together with the presence of the gTLD “.com” fails to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005):
Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.
Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s TYSON mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights to and legitimate interests in the disputed domain name. Once Complainant has established a prima facie case under this head of the Policy, the burden shifts to Respondent to show its rights or legitimate interests in the disputed domain name. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that, once a prima facie case has been established by a complainant, the burden shifts to a respondent to demonstrate its rights or legitimate interests in a disputed domain name).
Complainant has sufficiently established a prima facie case in these proceedings. Because Respondent has failed to respond to the allegations against it, we may presume that Respondent lacks rights to and legitimate interests in the disputed domain. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).
We nonetheless elect to examine the evidence of record, by reference to the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by observing that Complainant asserts, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name. Moreover, the pertinent WHOIS information identifies the registrant only as “Bridge Port Enterprises Limited.” On this record, we are constrained to conclude that Respondent is not commonly known by the disputed name and thus lacks rights to and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the relevant WHOIS information, as well as other information in the record, gave no indication that that respondent was commonly known by the domain names, and where a complainant had not authorized that respondent to register a domain name containing its mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We also note that Respondent does not contest Complainant’s
allegation to the effect that Respondent’s domain name resolves to a parked web
site offering third-party links unrelated to the business of Complainant. Respondent’s website, which thus acts as a
gateway for links to other websites unaffiliated with Complainant, does not
constitute either a bona fide
offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain name under
Policy ¶ 4(c)(iii). See Constellation
Therefore, the Panel finds that Respondent lacks rights to or legitimate interests in the disputed domain name within the meaning of Policy ¶ 4(a)(ii).
Respondent’s domain name uses Complainant’s mark in
combination with generic terms related to Complainant’s business in an evident
attempt to capitalize on Internet users’ efforts to find Complainant’s
website. The disputed domain name
redirects these Internet users to a website offering nothing more than
unrelated links to other goods and services.
When the diverted Internet users arrive at Respondent’s website and
click on any of third-party links, Respondent presumably receives income in the
form of “pay-per-click” fees. Respondent
is thus using the disputed domain name to attract Complainant’s customers for
Respondent’s commercial gain. These
efforts to attract Complainant’s customers and profit from their confusion
constitute bad faith registration and use of the contested domain name under
Policy ¶ 4(b)(iv).
See Bank of Am. Corp. v.
For this reason, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <tysonsfoodsinc.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 2, 2010
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