Phillips 66 Company v. Super Privacy Service LTD c/o Dynadot
Claim Number: FA2004001891642
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <p66jobs.com>, registered with Dynadot, 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 10, 2020; the Forum received payment on April 10, 2020.
On April 13, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <p66jobs.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@p66jobs.com. Also on April 13, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the Parties a Notification of Respondent Default.
On May 5, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC as Panelist.
On May 6, 2020 having reviewed the documents submitted, the Panel issued a procedural order for requesting additional submissions and extending time for rendering a decision pursuant to Rule 12 of the Policy. The Panel specifically requested clarification of Complainant’s claim to ownership of the trademarks relied upon in the Complaint. Complainant was allowed a period of four days to furnish the additional information and Respondent was allowed a period of four days thereafter to make submissions on any additional information submitted.
On May 8, 2020 Complainant timely furnished the requested information. No submissions were received from Respondent and on May 13, 2020, the Panel proceeded to make this decision.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the PHILIPS 66 and 66 trademarks acquired by its ownership of the trademark registrations described below and its claimed extensive use of the PHILIPS 66 and 66 marks in its business for many years.
Complainant states that it has built an extensive network of licensees and sub-licensees who manufacture, market, distribute and sell authorized products and services throughout the world in approximately 9,000 branded stations. It operates 13 oil refineries in the United States and Europe that process crude oil and other feedstocks, and has a global refining capacity of 2.2 million barrels of crude oil per day. Complainant also manages over 21,000 miles of crude oil, raw natural gas liquid, natural gas and petroleum product pipeline systems in the United States, including those partially owned and operated by affiliates.
Complainant’s employees are assigned an email address account using Complainant’s <p66.com> domain name as their primary communication resource for work purposes. Complainant has also established numerous general-purpose email accounts using the p66.com domain (such as lubricants@p66.com and investorrelations@p66.com). Complainant’s use of email addresses containing the p66.com domain is known to the public and referenced in Complainant’s marketing materials.
Complainant submits that the disputed domain name <p66jobs.com> is confusingly similar to Complainant’s PHILLIPS 66 and 66 marks. The disputed domain name uses Complainant’s 66 trademark, which Complainant submits is famous mark strongly associated with Complainant, and simply adds the letter “p” to reference Complainant’s famous PHILLIPS 66 name and mark.
Complainant submits that multiple prior panels have determined, the term “p66” is confusingly similar to Complainant’s PHILLIPS 66 and 66 marks, or, in the alternative, that Complainant has common law trademark rights in “P66”. See, e.g. Phillips 66 Company v. ghy, FA 1832449 (Forum April 4, 2019) (“The disputed domain name <p66.pw> incorporates Complainant's stylized 66 mark and corresponds to an abbreviated form of Complainant's famous PHILLIPS 66 mark, with the addition of the ‘.pw’ top-level domain. These variations do not substantially diminish the similarity between the domain name and Complainant's marks”);
Moreover, multiple prior panels have determined that the addition of the generic term “jobs” is insufficient to distinguish the disputed domain name from Complainant’s Phillips 66 Marks or its P66 mark. See, e.g., Phillips 66 Company v. Scott Day, FA 1719135 (Forum April 5, 2017) (“we conclude from a review of the record that Respondent’s <phillips66job.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 service mark. The domain name contains the mark in its entirety, less only the space between its terms, but with the addition of the generic term ‘job,’ which relates to an aspect of Complainant’s business, and of the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”);
Complainant submits that there is no question as to priority because Complainant and its predecessors in interest have used the PHILLIPS 66 mark since at least as early as 1927, decades before Respondent registered the disputed domain name in 2020. Complainant had also obtained multiple registrations worldwide for, and extensively used, its PHILLIPS 66 and 66 marks prior to Respondent’s registration of the disputed domain name.
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known by the disputed domain name and asserting that Complainant has not licensed or otherwise permitted Respondent to use its PHILLIPS 66 mark, its P66 mark, or any other mark owned by Complainant.
Complainant further alleges that Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services because the disputed domain resolves to a parking page website that displays links relating to employment products and services that direct Internet visitors to advertisements and websites not affiliated with Complainant. Complainant has adduced in evidence, in an annex to the Complaint, a screenshot of the web-page to which the disputed domain resolves to illustrate this assertion.
Complainant argues that users that access Respondent’s website at the disputed domain name while attempting to seek employment with Complainant will be misled into accessing employment websites that are unaffiliated with Complainant. Complainant argues that it follows that Respondent is not making a legitimate noncommercial or fair use of the domain name.
Complainant further alleges that Respondent registered and is using the domain name in bad faith, submitting that Respondent’s use of the disputed domain name confusingly similar to Complainant’s Phillips 66 Marks and P66 mark for a parking page website featuring pay-per-click links is strong evidence of bad faith registration and use. Numerous prior panels have determined that such use of a disputed domain name demonstrates bad faith use and registration. See, e.g., Brooks Sports, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1844960 (Forum June 28, 2019) (“Use of a domain name to advertise links to third-party competitors is evidence of registration and use in bad faith under Policy ¶ 4(b)(iii) and (iv)”).
Complainant additionally submits that Respondent’s bad faith is evidenced by the fact that the PHILLIPS 66 and 66 marks are closely affiliated with Complainant as a result of Complainant’s extensive use of the marks predating the date on which the respondent registered the disputed domain names, and therefore the Respondent had actual notice of Complainant’s rights in the PHILLIPS 66 Marks and engaged in opportunistic bad faith.
Complainant refers to a screenshot of the Forum’s database of cases, which is submitted as an annex to the Complaint, which shows that Respondent has been the respondent in over 65 adverse UDRP decisions. Complainant submits that this demonstrates that Respondent has engaged in a pattern of bad faith registration and use of domain names which supports a finding of bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(ii).
In response to a request for further information regarding ownership of the registered trademarks relied upon, Complainant submitted additional evidence that US Reg. Nos. 255,501, 255,508, 627,025, 646,273, 758,459, 1,923,166, 2,958,598 2,904,680, 3,129,945, 3,129,949, 4,227,585, and 4,296,339 were assigned from the prior registrant ConocoPhillips Company to Complainant on April 26, 2012. Complainant submitted a copy of the Trademark and Service Mark Assignment agreement between Complainant and ConocoPhillips Company that has been recorded with the United States Patent and Trademark Office, as well as additional documents showing chain of title for these registrations between the original registrants and ConocoPhillips Company in an annex to its response.
B. Respondent
Respondent failed to submit a Response or any additional submissions in this proceeding.
Complainant is engaged in the manufacture, marketing, distribution, and sale of products and services relating to energy, including refinery services, gasoline, diesel, fuels, and other related products and services, in association with trademarks consisting of or incorporating “PHILLIPS 66” or “66”.
Complainant is the registered owner of a portfolio of trademarks including the following United States trademarks registered on the Principal Register
· PHILLIPS 66 (Design) registration number 255,501, registered on April 23 1929 for goods in U.S. class 15 (international class 4);
· PHILLIPS 66 (Design) registration number 2,904,680, registered on November 23 2004 on the Principal Register for goods in international class 9;
· PHILLIPS 66 (Design) registration number 3,129,949, registered on August 15, 2006 for goods in international class 4;
· PHILLIPS 66 registration number 4,227,585, registered on August 15 2006 for goods in international class 6;
· PHILLIPS 66 registration number 4,296,339 registered on October 16, 2012 for services in international class 40;
· 66 (Stylized) , registration number 255,508, registered on April 23, 1929 for goods in international class 15;
· 66 (Stylized) registration number 627,025, registered on May 15, 1956 for goods in international class 25;
· 66 (Stylized) registration number 646,273 registered on June 4, 1957 for goods in international class 6;
· 66 (Stylized), registration number 5,735,614 registered on April 23, 2019 for services in international class 37;
· 66 (Stylized) registration number 5,735,615, registered on April 23 2019 for goods I international class 4; and
· PHILLIPS 66 and Design registration numbers 758,459, 1,923,166, 2,958,598, and 3,129,945.
Additionally of relevance is that Complainant is the registrant of the domain name <p66.com> which has been used for its corporate email addresses since 2012.
The disputed domain name was registered on March 26, 2020 and resolves to a website which only displays purported links to employment related content.
There is no information available about Respondent except for that contained in the Complaint, the Registrars’ WhoIs, and the information provided by the Registrar in response to the Forum’s request for verification on the registration details of the disputed domain name.
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."
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:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has adduced uncontested convincing evidence of its rights in the PHILIPS 66 and 66 trademarks acquired through its ownership of the above-described portfolio of trademark registrations, including the additional information provided in response to the procedural order issued by this Panel, and its claimed substantial use of these marks in its oil business for many years.
The disputed domain name consists of the letter “p” together with Complainant’s trademark “66”, the descriptive word “jobs” and the generic top level domain extension <.com>. The disputed domain name contains Complainants 66 trademark in its entirety and corresponds to an abbreviated form of Complainant's PHILLIPS 66 mark.
The word “jobs” is generic and creates no distinguishing difference. Additionally, the gTLD <.com> extension may be ignored in the circumstances of this Complaint because a domain extension, is recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
This Panel finds that the disputed domain name is confusingly similar to Complainant’s PHILLIPS 66 and 66 marks and therefore Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that submits that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known by the disputed domain name; that Complainant has not licensed or otherwise permitted Respondent to use its PHILLIPS 66 or 66 marks, or any other mark owned by Complainant; that Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services because the disputed domain resolves to a parking page website that displays links relating to employment products and services that direct users to advertisements and websites not affiliated with Complainant; that such use is neither a bona fide offering of goods and services nor a legitimate noncommercial or otherwise fair use of the disputed domain name.
It is well established that if Complainant makes out such a prima facie case, the burden of production shifts to Respondent to prove its rights or legitimate interests in the disputed domain name. Respondent has failed to file any response to the Complaint and so has not discharged the burden of production.
In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
The disputed domain name consists of Complainant’s 66 mark in its entirety together with the letter “p” and the word “jobs”. Complainant is a large organization and it is probable that there will be Internet users seeking information about potential employment opportunities that it may have available.
There is no explanation given by Respondent as to why the disputed domain name was chosen and registered, so on the balance of probabilities this Panel must find that the disputed domain name was registered and is being used with Complainant’s name, brand and trademarks in mind, in order to attract Internet users to Respondent’s website. It would appear that Respondent is generating profit from such links and in these circumstances this Panel finds that the disputed domain name was registered in bad faith.
In the absence of any Response or explanation from Respondent, this Panel finds on the balance of probabilities, that by using the disputed domain name to resolve to the website presenting links to employment related content, Respondent is intentionally attempting to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship ,affiliation, or endorsement of his web site and is therefore using the disputed domain name in bad faith.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy requested in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <p66jobs.com> domain name be TRANSFERRED from Respondent to Complainant.
____________________________________
James Bridgeman SC
Panelist
Dated: May 13, 2020
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