Phillips 66 Company v. Scott Day
Claim Number: FA1702001719135
Complainant is Phillips 66 Company (“Complainant”), represented by Craig Stone of Phillips 66 Company, Texas, USA. Respondent is Scott Day (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66job.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 February 27, 2017; the Forum received payment on February 27, 2017.
On March 1, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <phillips66job.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 3, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2017 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@phillips66job.com. Also on March 3, 2017, 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 3, 2017, 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, a petroleum products producer, uses the Phillips 66 name and mark in the operation and marketing of its business.
Complainant holds a registration for the PHILLIPS 66 service mark, on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,227,585, registered October 16, 2012.
Respondent registered the domain name <phillips66job.com> in 2016.
The domain name is confusingly similar to Complainant’s PHILLIPS 66 mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise permitted Respondent to use its
Phillips 66 mark.
Respondent does not use the domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Instead Respondent uses the domain name to operate an unauthorized website displaying information extracted from Complainant’s official <Phillips66.com> homepage in order to profit financially by attracting Internet users wishing to visit Complainant’s website.
Respondent employs its fabricated website, and the related email address jobs@phillips66job.com, to facilitate a fraudulent scheme by which it contacts individuals via email using its assumed identity purportedly to offer jobs on behalf of Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the PHILLIPS 66 mark when it registered the domain name.
Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights 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 all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See 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 the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the PHILLIPS 66 mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum August 9, 2015) (finding that a UDRP Complainant had rights in a mark adequate for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with the USPTO).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <phillips66job.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 service mark. The domain name contains the mark in its entirety, less only the space between its terms, but with the addition of the generic term “job,” which relates to an aspect of Complainant’s business, and of the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Gianvito Rossi SRL Unipersonale v. david backhumn, FA 1628059 (Forum August 12, 2015) finding that:
Domain name syntax prohibits spaces in a domain name, so their absence must be disregarded when comparing a mark with a disputed domain name under Policy ¶4(a)(i).
Similarly, see Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Further, see Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that contested domain names incorporating a UDRP complainant’s mark and merely adding the generic term “credit” were confusingly similar to that mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed 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 out 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 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), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the challenged domain name which 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 <phillips66job.com> domain name, and that Complainant has not authorized Respondent to use the PHILLIPS 66 mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Scott Day,” 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 purview of Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum August 28, 2014) (finding, on the basis of the relevant WHOIS information, that a respondent was not commonly known by a contested domain name so as to have demonstrated that it had rights to or legitimate interests in it as provided in Policy ¶ 4(c)(ii). See also Alaska Air Group, Inc. v. Song Bin, FA1408001574905 (Forum September 17, 2014) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name, and therefore could not claim rights to or legitimate interests in it under Policy ¶ 4(c)(ii), where a UDRP complainant had not licensed or otherwise authorized that respondent to use its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <phillips66job.com> domain name to operate an unauthorized website displaying information extracted from Complainant’s official <phillips66.com> homepage in order to profit financially by attracting Internet users wishing to visit Complainant’s website, and that Respondent employs its fabricated website, and the related email address jobs@phillips66job.com, to facilitate a fraudulent scheme by which it contacts individuals via email using its assumed identity purportedly to offer jobs on behalf of Complainant. This use of the domain name is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum September 30, 2003):
website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent’s … intent to divert Internet users seeking Complainant’s
See also Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel there finding that a respondent’s attempt to use a domain name that was confusingly similar to the mark of a UDRP complainant in order to pass itself off as that complainant was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <phillips66job.com> domain name, as alleged in the Complaint, is an effort to acquire illicit financial gain by using the domain name to pass Respondent off as Complainant in order to facilitate the commission of a fraud on unsuspecting Internet users. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum March 8, 2007) (finding, under Policy ¶ 4(b)(iii), that a respondent’s registration and use of a disputed domain name, which displayed a website similar to that of a UDRP complainant, constituted evidence of bad faith registration and use of the domain name.
We are also convinced by the evidence that Respondent’s <phillips66job.com> domain name, which is confusingly similar to Complainant’s PHILLIPS 66 mark, is employed by Respondent to confuse Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this too demonstrates Respondent’s bad faith in registering and using the domain name. See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Forum January 8, 2003) (finding, under Policy ¶ 4(b)(iv), that a disputed domain name was registered and used in bad faith where a respondent employed a domain name to attract Internet users to its fraudulent website by displaying there a UDRP complainant’s mark and likeness).
Finally, under this head of the Policy, Respondent’s use of the challenged <phillips66job.com> domain name fraudulently to profit by obtaining and exploiting personal and financial information from Internet users with fictitious job offers, a method commonly known as a phishing scheme, is, without more, a basis for finding that Respondent has registered and uses the domain name in bad faith. See, for example, Wells Fargo & Co. v. WhoisGuard, FA 1103650 (Forum December 13, 2007):
There is no dispute that respondent previously used the disputed domain name to obtain personal and financial information from Internet customers of complainant. This fraudulent use [is] known as ‘phishing.’
To the same effect, see also Microsoft Corporation v. Terrence Green, FA 1661030 (Forum April 4, 2016) (finding that a UDRP respondent’s use of disputed domain names to send fraudulent email messages to Internet users supported a finding of bad faith registration and use).
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 <phillips66job.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 5, 2017
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