Phillips 66 Company v. PHILLIP JONES / Phillips 66 Company
Claim Number: FA2204001991949
Complainant is Phillips 66 Company ("Complainant"), represented by Alexandra H. Bistline of Pirkey Barber PLLC, Texas, USA. Respondent is PHILLIP JONES / Phillips 66 Company ("Respondent"), Oklahoma, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <philip66.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 12, 2022; the Forum received payment on April 12, 2022.
On April 12, 2022, NameCheap, Inc. confirmed by email to the Forum that the <philip66.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 April 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@philip66.com. Also on April 13, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is engaged in the worldwide manufacture, marketing, distribution, and sale of petroleum products and services. Complainant is ranked 48th on the 2021 Fortune 500 list and 61st on the 2020 Fortune Global 500 list. Complainant and its predecessors in interest have used PHILLIPS 66 and related marks in connection with petroleum products and services for more than 90 years. Complainant owns numerous trademark registrations for these marks, including United States registrations for PHILLIPS 66 in standard character form, and asserts that the PHILLIPS 66 mark has become famous as a result of extensive use and promotion.
Respondent registered the disputed domain name <philip66.com> in December 2021. The domain name currently redirects to Complainant's own website, in what Complainant alleges is part of a fraudulent scheme intended to create the appearance that the domain name is associated with Complainant. Complainant states, with supporting evidence, that the domain name is being used to impersonate Complainant or its employees in email messages and various documents sent to third parties, in efforts to induce them to enter into fraudulent transactions. Complainant states that Respondent is not commonly known by the domain name and has not been licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <philip66.com> is confusingly similar to its PHILLIPS 66 mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <philip66.com> incorporates Complainant's registered PHILLIPS 66 trademark, omitting a letter "L," the letter "S," and the space, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, FA 1938027 (Forum Apr. 26, 2021) (finding <philipz66.com> confusingly similar to PHILLIPS 66); Phillips 66 Co. v. Hulmiho Ukolen / Poste restante, FA 1840730 (Forum May 24, 2019) (finding <philips66.com> confusingly similar to PHILLIPS 66). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to impersonate Complainant for fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, supra (finding lack of rights or interests in similar circumstances); Phillips 66 Co. v. ghy, FA 1832449 (Forum Apr. 4, 2019) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to and obviously designed to create confusion with Complainant’s famous mark, and is using it to impersonate Complainant in connection with a fraudulent scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, supra (finding bad faith registration and use in similar circumstances); Phillips 66 Co. v. ghy, supra (same). In addition, the Panel notes also that the registration data provided by Respondent appear to be at least partly false, as they include Complainant's name and the address of its former corporate headquarters. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <philip66.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 6, 2022
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