Phillips 66 Company v. Vanshita sharma / Ms
Claim Number: FA2103001938027
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Vanshita sharma / Ms (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <philipz66.com>, registered with NameCheap, 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 26, 2021; the Forum received payment on March 26, 2021.
On March 26, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <philipz66.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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@philipz66.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 <philipz66.com> domain name is essentially identical to Complainant’s PHILLIPS 66 mark since it uses a misspelled version of the mark that merely deletes the letter “l” and replaces the “s” with a “z.”
Respondent does not have rights or legitimate interests in the <philipz66.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 because Respondent fails to make any active use the disputed domain name. Further, Respondent uses the domain name to impersonate Complainant in furtherance of a fraudulent email scheme.
Respondent registered and uses the <philipz66.com> domain name in bad faith because Respondent has a history of registering infringing domain names in bad faith. Additionally, Respondent disrupts Complainant’s business by impersonating Complainant in an e-mail phishing scheme. Respondent also passively holds the at-issue domain. Finally, Respondent had actual knowledge of Complainant’s rights in the PHILLIPS 66 mark at the time it registered the 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 <philipz66.com> domain name to facilitate an email phishing scheme.
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 an overt misspelling/mistyping of Complainant’s PHILLIPS 66 trademark, less its domain name impermissible space, where one “l” is deleted and the trademark’s “s” is replaced with a “z.” The misspelled mark is then followed by the top level domain name “.com” to complete the domain name. The differences between the <philipz66.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 <philipz66.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 trademark. See Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.). see also Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.).
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 confusingly similar <philipz66.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 “Vanshita Sharma” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <philipz66.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).
Next, while Respondent’s at-issue domain name fails to address any web content however the domain name is nevertheless used as an email addresses in support of a phishing scheme. In such scheme, Respondent poses as Complainant via email Respondent sends from the <philipz66.com> domain name that pretends to originate from Complainant’s recruiting department. Such email contains Complainant’s trademark and invites third parties to submit a resume to Respondent in furtherance of potentially receiving a position with Complainant. Respondent’s scheme also entails deceiving the email recipient into providing Respondent with payments purportedly for credit card processing or application processing fees for which the recipient may expect reimbursement by Complaint. Clearly, Respondent’s duplicitous use of the at-issue domain name as discussed above supports 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 Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also, Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
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 <philipz66.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.
First and as discussed above regarding rights and legitimate interests, Respondent’s confusingly similar <philipz66.com> domain name is used to facilitate an email phishing scheme whereby Respondent impersonates Complainant via deceptive email in furtherance of fraud. Respondent’s use of the confusingly similar <philipz66.com> domain name to steal Complainant’s identity and pass itself off as Complainant to defraud third parties disrupts Complainant’s business and demonstrates Respondent’s bad faith registration and use of the <philipz66.com> domain name pursuant to Policy ¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Next, having suffered two prior adverse UDRP decisions against Complainant Respondent has a history of registering infringing domain names in bad faith. Respondent thus exhibits a pattern of domain name abuse which suggests bad faith registration and use in the instant case per Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Finally, 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 <philipz66.com> domain name to attempt to impersonate Complainant through fraudulent email. Respondent’s registration and use of the confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further shows Respondent’s bad faith under 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 <philipz66.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 26, 2021
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