Phillips 66 Company v. Peter Sawyer
Claim Number: FA2103001938000
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Peter Sawyer (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66corp.com>, registered with Porkbun LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard 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, Porkbun LLC confirmed by e-mail to the Forum that the <phillips66corp.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 March 30, 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@phillips66corp.com. Also, on March 30, 2021, a Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was sent 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 22, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a world-wide manufacturer and distributor of petroleum products and services.
Complainant holds a registration for the PHILLIPS 66 service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,296,339, registered February 26, 2013.
Respondent registered the domain name <phillips66corp.com> on February 11, 2021.
The domain name is confusingly similar to Complainant’s PHILLIPS 66 mark.
Respondent has not been commonly known by the domain name.
Respondent is neither licensed nor otherwise authorized by Complainant to use the PHILLIPS 66 mark.
Respondent does not use the domain name for a bona fide offering of goods or services nor for a legitimate noncommercial or fair use.
Instead, Respondent fails to make any active use of the domain name.
Respondent lacks both rights to and legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the PHILLIPS 66 mark prior to registering the domain name.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark 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."
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in a UDRP complaint to be deemed true). But see 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”).
Identical and/or Confusingly Similar
Complainant has rights in the PHILLIPS 66 service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum December 28, 2018) (finding that a UDRP complainant’s registration of its mark with the USPTO sufficiently confirmed rights in the mark under Policy ¶ 4(a)(i)).
As to Respondent’s inclusion in the domain name of “corp,” a generic term descriptive of a feature of Complainant’s business, see, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to the mark of another the generic term “finance,” which described a UDRP complainant’s financial services business conducted under that mark, did not sufficiently distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)).
Finally, under this head of the Policy, see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent has neither rights to nor legitimate interests in the <phillips66corp.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the contested <phillips66corp.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the PHILLIPS 66 mark for any reason. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Peter Sawyer,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
Complainant next asserts that Respondent fails to make any active use of the <phillips66corp.com> domain name. The Policy provides that, putting aside the question whether Respondent has been commonly known by the domain name, already discussed above) one of the two other explicitly-described ways in which Respondent might have established that it has rights to or legitimate interests in the domain name would have been to prove that it is using, or has, at least, made demonstrable preparations to use, the domain name in connection with a bona fide offering of goods or services. Here we have no such evidence. The remaining method by which Respondent might have shown that it has rights to or legitimate interests in the domain name would have been to provide evidence that it is making a legitimate noncommercial or fair use of the domain name. But Complainant asserts that Respondent is making no use of it at all, and Respondent does not deny this contention. We must conclude, then, that Respondent has neither rights to nor legitimate interests in the domain name. See, for example, CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018):
Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel therefore finds that Complainant has amply satisfied the proof requirements of Policy ¶ 4(a)(ii).
Respondent’s failure to make any active use of the <phillips66corp.com> domain name is itself evidence that it has both registered and now uses the domain name in bad faith. This conclusion proceeds upon the basis that, in circumstances like those found here, a respondent’s failure to make any active use of a domain name that is confusingly similar to the mark of another is a form of perfidious use, in part because it deprives the mark holder of the opportunity to reflect its mark in a corresponding domain name. See, for example, Telstra Corp. Ltd. v. Nuclear Marshmallows, D2000-003 (WIPO February 18, 2000).
[I]naction (eg. passive holding) in relation to a domain name registration can, in certain circumstances, constitute a domain name being used in bad faith.
See also Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018):
Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.
We are also persuaded by the evidence that Respondent knew both of Complainant and Complainant’s rights in the PHILLIPS 66 mark when it registered the <phillips66corp.com> domain name. This too demonstrates Respondent’s bad faith in registering the domain name. See, for example, Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding bad faith registration of a domain name where a respondent was “well-aware” of a UDRP complainant’s mark at the time of its registration of the domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <phillips66corp.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 26, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page