Phillips 66 Company v. Oleg Nester / Bitclub Network
Claim Number: FA2208002008349
Complainant is Phillips 66 Company (“Complainant”), represented by Alexandra H. Bistline of Pirkey Barber PLLC, US. Respondent is Oleg Nester / Bitclub Network (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <philipss66.com>, registered with NameCheap, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2022; the Forum received payment on August 15, 2022.
On August 15, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <philipss66.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 August 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 2022 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@philipss66.com. Also on August 16, 2022, 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 September 8, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that, for more than 90 years, it and its predecessors in interest have engaged in the world-wide manufacture, marketing, distribution, and sale of high-quality petroleum products and services, including gasoline, diesel, jet fuel, lubricants, motor fuels, and other related products and services, in association with trademarks consisting of or incorporating PHILLIPS 66. Complainant and its predecessors have developed an extensive network of licensees and sub-licensees who manufacture, market, distribute and sell authorized products and services throughout the world in approximately 7,000 branded stations. Complainant 66 also provides branded credit cards and debit cards in connection with its branded stations. In addition to automotive gasoline and diesel fuel, Complainant produces aviation fuels and markets them through independent marketers and dealers at approximately 800 PHILIPPS 66 branded operations facilities. Complainant is also one of the largest finished lubricant suppliers in the United States and sells products to many key business markets, including automotive, trucking, agriculture, aviation, power generation, mining and construction. 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 is ranked 74th on the 2022 Fortune 500 list (https://fortune.com/global500/) and 48th on the 2021 Fortune 500 list (https://fortune.com/company/phillips/fortune500/). Complainant has rights in the PHILLIPS 66 mark through its registration of the mark in the United States in 2004.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its PHILLIPS 66 mark because it consists of a misspelling of the mark (a letter “L” is omitted and a letter “S” is added), with the addition of the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the PHILLIPS 66 mark. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves a page that attempts to pass off as Complainant, displaying Complainant’s mark, logo, and copyrighted material from Complainant’s legitimate website. Respondent uses the disputed domain name to engage in phishing. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to pass itself off Complainant and divert customers for commercial gain. Respondent registered the disputed domain name in order to engage in phishing. Respondent engaged in typosquatting. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the PHILLIPS 66 mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PHILLIPS 66 and uses it to market petroleum and related products and services.
Complainant’s rights in its marks date back to at least 2004.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves a page that attempts to pass off as Complainant, displaying Complainant’s mark, logo, and material from Complainant’s legitimate website. Respondent uses the disputed domain name to engage in phishing.
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 disputed domain name consists of a misspelling of Complainant’s PHILLIPS 66 mark (a letter “L” is omitted and a letter “S” is added), with the addition of the “.com” generic top-level domain (“gTLD”). The addition of a gTLD to a misspelling of a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Phillips 66 Company v. PHILLIP JONES /Phillips 66 Company, FA 1991949 (Forum May 6, 2022) (“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 also T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also AOL Inc. v. Morgan, FA 1349260 (Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized or licensed to Respondent any rights in the PHILLIPS 66 mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Oleg Nester/ Bitclub Network”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent purports to be Complainant through its use of a fraudulent webpage bearing Complainant’s logo, mark, and copyrighted material taken from Complainant’s legitimate website. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Therefore, the Panel finds that Respondent fails to 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).
Further, the resolving website solicits personal information from internet users. Thus Respondent has engaged in phishing and this too demonstrates its failure to 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). See Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Thus the Panel finds, on this ground also, that Respondent fails to 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).
For all the above reasons, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website attempts to pass off as Complainant. Use of a disputed domain name to imitate a complainant’s website can be evidence of an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent is using the resolving webpage to solicit personal information from internet users. Thus Respondent has engaged in phishing and demonstrated bad faith registration and use. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Therefore the Panel finds Respondent’s registration and use of the disputed domain name to be in bad faith pursuant to Policy ¶ 4(a)(iii).
Moreover, by omitting one letter and adding another in Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo and material copied from Complainant’s legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <philipss66.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 8, 2022
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