Phillips 66 Company v. kevin j mitchell / phillips66global
Claim Number: FA2103001938004
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is kevin j mitchell / phillips66global (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66global.com>, registered with Tucows Domains Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 25, 2021; the Forum received payment on March 25, 2021.
On March 26, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <phillips66global.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 March 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2021 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@phillips66global.com. Also on March 29, 2021, 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 April 23, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Phillips 66 Company, manufactures, markets, distributes, and sells petroleum products and services.
Complainant has rights in the PHILLIPS 66 mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <phillips66global.com> domain name is essentially identical to Complainant’s PHILLIPS 66 mark since it uses the entire mark, merely adding the generic term “global” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <phillips66global.com> domain name because Respondent is not commonly known by the at-issue domain name and is not licensed or permitted to use Complainant’s PHILLIPS 66 mark. Additionally, Respondent fails to use the domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent simply redirects users to Complainant’s legitimate webpage.
Respondent registered and uses the <phillips66global.com> domain name in bad faith because Respondent creates confusion with Complainant by redirecting Internet users to Complainant’s own webpage. Additionally, Respondent had actual knowledge of Complainant’s rights in the PHILLIPS 66 mark at the time it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the PHILLIPS 66 trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in PHILLIPS 66 trademark.
Respondent uses the <phillips66global.com> domain name to redirect traffic to Complainant’s genuine website.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for PHILLIPS 66 demonstrates Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
The at-issue domain name consists of Complainant’s PHILLIPS 66 trademark less its domain name impermissible space, followed by the generic term “global” with all followed by the top level domain name “.com” to complete the domain name. The differences between the at-issue <phillips66global.com> domain name and Complainant’s PHILLIPS 66 trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <phillips66global.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 trademark. See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <phillips66global.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Kevin J Mitchell c/o phillips66global” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <phillips66global.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s at-issue domain name redirects internet traffic to Complainant’s genuine website. Respondent’s use of the at-issue domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <phillips66global.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned regarding rights and legitimate interests, Respondent registered and uses the at-issue domain name to redirect internet traffic to Complainant’s genuine website. It is conceivable that by doing so Respondent is attempting to build consumer confidence regarding Respondent’s faux relationship with Complainant so that Respondent might inappropriately exploit such false confidence later on. Using the domain name in this manner deceptively suggests an affiliation between Respondent and Complainant which does not exist and demonstrates Respondent’s bad faith pursuant Policy ¶ 4(b)(iv). See MySpace, Inc. v. Gomez, D2007-1231 (WIPO Oct. 17, 2007) (finding bad faith when "Respondent has been using the disputed domain name to link to the Complainant’s own website. Inherent in that conduct is the risk that the Respondent may at any time cause Internet traffic to re-direct to a website that is not that of, or associated with, the Complainant.").
Moreover, Respondent had actual knowledge of Complainant’s rights in the PHILLIPS 66 mark when it registered and used the at-issue domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s PHILLIPS 66 trademark and from Respondent’s use of the <phillips66global.com> domain name to redirect internet traffic to Complainant’s official website. Respondent’s registration and use of the confusingly similar domain name with knowledge of Complainant’s trademark rights further indicates Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <phillips66global.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 26, 2021
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