Phillips 66 Company v. Brad Williams
Claim Number: FA1509001638697
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Brad Williams (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66-corp.com>, registered with eNom, 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.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 21, 2015; the Forum received payment on September 21, 2015.
On September 21, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <phillips66-corp.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 September 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 2015 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@phillips66-corp.com. Also on September 22, 2015, 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 October 21, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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's contentions can be summarised as follows:
For more than 85 years the Complainant or their predecessors have engaged in worldwide manufacture, distribution and sale of petroleum products and related services under the mark PHILLIPS 66. Complainant owns valuable goodwill attached to its mark.
Complainant owns numerous trade mark registrations for the PHILLIPS 66 mark for its goods and services including in the USA.
The Domain Name is identical or confusingly similar to the Complainant’s PHILLIPS 66 mark. It contains the identical mark PHILLIPS 66 and merely tacks on the generic term 'corp' which will be understood as a shortened version of the generic term corporation. The presence of the gTLD .com is irrelevant in a UDRP analysis.
Complainant has used the PHILLIPS 66 mark since at least 1927 and registered it long before the Respondent registered the Domain Name in 2015.
Respondent is not commonly known by the Domain Name. It has not used or prepared to use the Domain Name in relation to bona fide goods or services. The Domain Name does not resolve to an active web site. It simply displays a generic 'error' message. There is no legitimate non-commercial or fair use. The Complainant has not licensed or otherwise permitted the Respondent to use its PHILLIPS 66 mark.
Respondent has created e mail accounts that use the Domain Name fraudulently to contact businesses to request price quotes and order products and equipment. Respondent registered and is using the Domain Name in bad faith. It is clear the Respondent is aware of the Complainant and its business and is misrepresenting it is connected with the Complainant to cause confusion for fraudulent purposes.
The Respondent also used a privacy service which gives rise to a rebuttable presumption of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's PHILLIPS 66 mark, a hyphen, the term 'corp' (generally understood to have the generic meaning corporation) and the gTLD .com.
Prior panels have found that adding a generic term does little to remove confusing similarity between a domain name and a mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v Healy/BOSTH D2001-0026 (WIPO Mar 23, 2001)(Finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term.)
Prior panels have found that the addition of a hyphen does not affect a confusing similarity analysis. See Teradyne Inc. v 4Tel Tech. , D2000-0026 (WIPO May 9, 2000)(finding that the 'addition of a hyphen to the registered mark is an insubstantial change. Both the mark and the domain name would be pronounced in the identical fashion eliminating the hyphen')
The gTLD .com does not serve to distinguish the Domain Name from the PHILLIPS 66 mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Respondent does not appear to be commonly known by the Domain Name, does not appear to have any registered rights in it and has no consent from the Complainant to use it. In fact, it is using the Domain Name to deceive suppliers of goods for pecuniary gain in that the Respondent seeks to obtain goods by deception of third party companies using a confusingly similar domain name to the Complainant’s mark. Prior panels have found that a respondent's attempt to pass itself off as the complainant is not bona fide offering of goods and services under Policy 4 (c)(i) nor a legitimate non-commercial or fair use pursuant to Policy 4 (c) (iii). See Kmart of Mich. Inc. v Cone, FA 655014 (Nat. Arb. Forum April 25, 2006).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Domain Name is being used to fraudulently obtain goods from third party companies using the Complainant's mark. The Respondent is clearly passing itself off as the Complainant for this purpose. The panel finds the use of the Domain Name is confusing and deceptive. See Capital FIn. Corp. & Capital One Bank v Howel FA 289304 (Nat. Arb, Forum Aug. 11, 2003) (Holding that as the capitalonebank.biz domain name was confusingly similar to Complainant’s mark, it was being used for fraudulent purposes constituting bad faith registration and use. ) See Wells Fargo & Co. v Maniac State FA 608239 (Nat. Arb. Forum Jan 19, 2006)(Finding bad faith registration and use where respondent was using the wellsbankupdate.com domain name for fraudulent purposes).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb under the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <phillips66-corp.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 3, 2015
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