Phillips 66 Company v. kelechi Nathan / Philiips 66
Claim Number: FA2002001883255
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is kelechi Nathan / Philiips 66 (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <philiips66.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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 14, 2020; the Forum received payment on February 14, 2020.
On February 14, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <philiips66.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 February 17, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 2020 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@philiips66.com. Also on February 17, 2020, 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 March 12, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 claims rights in the PHILLIPS 66 mark relying on its ownership of the portfolio of trademark and service mark registrations described below and asserting that it has used the PHILLIPS 66 mark for more than 85 years.
Complainant submits that it has developed an extensive network of licensees and sub-licensees who manufacture, market, distribute and sell its authorized products and services throughout the world in approximately 9,000 branded stations. Complainant operates 13 refineries in the United States and Europe that process crude oil and other feedstocks, and has a global refining capacity of 2.2 million barrels of crude oil per day.
Complainant submits that the disputed domain name <philiips66.com> is confusingly similar to its PHILLIPS 66 marks, arguing that the disputed domain name contains a typographical error of the word “phillips” replacing one of the letters “l” with the letter “i,”. Complainant submits that this is a classic example of typosquatting designed to take advantage of Internet users’ typographical errors. Prior panels have determined that a domain name that differs from Complainant’s PHILLIPS 66 mark by a single letter are confusingly similar to the mark. See, e.g. Phillips 66 Company v. VistaPrint Technologies Ltd (“Respondent’s disputed domain name, <philips66.net>, is confusingly similar to Complainant’s PHILLIPS 66 mark because the domain only differs through the removal of the letter ‘L’ in the word ‘Phillips’ and through the addition of the generic top-level domain (‘gTLD) ‘.net.’”).
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name submitting that Respondent is not commonly known by the domain name at issue, nor has Complainant licensed or otherwise permitted Respondent to use its PHILLIPS 66 marks, or any other mark owned by Complainant.
Complainant adds that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name; and that Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services.
The disputed domain name resolves to a website that is a mirror image of Complainant’s website featuring prominent use of Complainant’s marks, copyrighted materials, and other identifying information. Respondent’s website also features links that direct users to pages on Complainant’s official website, as illustrated by representative screenshots of Respondent’s website attached as an annex to the Complaint. Numerous prior panels have determined that a respondent’s use of a disputed domain name to pass itself off as a complainant does not constitute a bona fide offering of goods and services. See, e.g., Dell Inc. v. Ayush Kumar, FA 1776318 (Forum April 11, 2018) (“Complainant provides screenshots of the website resolving from the disputed domain name, which displays the DELL mark and logo along with products similar to those of Complainant’s. The Panel finds that Respondent attempts to pass itself off as Complainant to offer competitive services, failing to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii)..”)
Complainant submits that the disputed domain name was registered and is being used in bad faith alleging that Respondent’s use of the disputed domain name in connection with a website that mirrors the Complainant’s official website and links to the Complainant’s official website in a deceptive manner is strong evidence of bad faith registration and use.
Complainant adds that Respondent’s use of the disputed domain name for a website mimicking Complainant’s official website and linking to Complainant’s official website shows that Respondent knew of Complainant’s well-known PHILLIPS 66 marks and rights. Prior panels have concluded that a respondent’s prior actual knowledge of a complainant’s trademark further indicates that the respondent registered and used the disputed domain name in bad faith. See, e.g., Phillips 66 Company v. Cimpress Schweiz GmbH, FA 1802407 (Forum September 17, 2018) (“Complainant submits that due to Respondent’s use of Complainant’s 66 mark and Respondent’s impersonation of Complainant’s CFO, Respondent had actual knowledge of the trademark. The Panel therefore agrees that Respondent had actual knowledge of Complainant’s rights in the 66 mark, thus constituting bad faith under Policy ¶ 4(a)(iii)”).
Complainant argues that Respondent’s registration of a domain name that differs by only a single letter from Complainant’s famous PHILLIPS 66 trademark and presents the same meaning, pronunciation, or overall visual impression of the PHILLIPS 66 mark is a typical example of typosquatting, by which the creator of a domain name attempts to take advantage of common typing errors made by Internet users in entering into their web browsers the names of enterprises with which they wish to do business. Typosquatting is independent evidence that Respondent lacks rights to or legitimate interests in the contested domain name, and the domain was registered and is used in bad faith. See, e.g., Phillips 66 Company v. VistaPrint Technologies Ltd (finding Respondent’s use of <philip66.net> “is typosquatting in bad faith under Policy ¶ 4(a)(iii).”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant manufactures, markets and distributes oil products and provides related services in relation to which Complainant uses the PHILLIPS 66 mark. Complainant owns a large international portfolio of trademark registrations for the mark including the following United States trademark registrations:
· United States registered trademark PHILLIPS 66 (Stylized) registration number 255,501, registered on April 23, 1929 on the Principal Register for goods in International class 4;
· United States registered trademark PHILLIPS 66, registration number 2,904,608, registered on November 23, 2004 on the Principal Register for goods in International class 9;
· United States registered trademark PHILLIPS 66, registration number 3,129,949, registered on August 15, 2006 on the Principal Register for goods in International class 4;
· United States registered service mark PHILLIPS 66, registration number 4,227,585, registered on October 16, 2012 on the Principal Register for services in International class 40;
· United States registered service mark PHILLIPS 66, registration number 4,296,339 registered on February 26, 2013 on the Principal Register for services in International class 40;
· United States registered trademark 66 (Stylized), registration number 627,025, registered on May 15, 1956 on the Principal Register for goods in international class 25;
· United States registered trademark 66 (Stylized) registration number 646,273, registered on June 4, 1957 on the Principal Register for goods in international class 6;
· United States registered service mark 66 (Stylized) registration number 5,735,614, registered on April 23, 2019 on the Principal Register for services in international class 37;
· United States registered trademark 66 (Stylized), registration number 5,735,615 registered on April 23, 2019 on the Principal Register for goods in international class 4.
Respondent is the owner of the disputed domain name which resolves to a website that mimics Complainant’s website at < http://phillips66.com/>.
There is no information available about Respondent except for that provided in the Complaint and the Registrar’s response to the Forum’s request for verification of the disputed domain name in the course of 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(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”).
Complainant has provided convincing uncontested evidence of its rights in the PHILLIPS 66 trademark and service mark through its ownership the abovementioned portfolio of registrations and extensive use in the manufacture, supply of oil and lubricants and provision of related services.
The disputed domain name is almost identical to Complainant’s PHILLIPS 66 marks and differs merely by the replacement of the letter “l” with the letter “i”.
This Panel finds that because the combination of the name “PHILLIPS” and the number “ 66” has no obvious meaning other than as Complainant’s trademark, the disputed domain name <philiips66.com> is confusingly similar to Complainant’s PHILLIPS 66 marks.
Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name submitting that Respondent is not commonly known by the domain name at issue; that Complainant has not licensed or otherwise permitted Respondent to use its PHILLIPS 66 marks, or any other mark owned by Complainant; that Respondent is not making a legitimate noncommercial or fair use of the domain name. Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; and that the disputed domain name resolves to a website that is a mirror image of the Complainant’s website featuring prominent use of Complainant’s marks, copyrighted materials, and other identifying information and features links that direct users to pages on Complainant’s official website.
It is well established that in such circumstances, where Complainant has made out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests. Respondent has failed to discharge the burden. This Panel must therefore find that on the balance of probabilities, Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant’s first trademark registration for the PHILLIPS 60 mark was registered on April 23, 1929 which pre-dates the Internet. It is implausible that the disputed domain name, so closely resembling Complainant’s mark was independently created. This Panel finds therefore that on the balance of probabilities, the disputed domain name was registered in bad faith with Complainant’s mark in mind. This finding is supported by the manner in which Respondent is using the disputed domain name to resolve to Complainant’s website.
On the evidence adduced Respondent is using the disputed domain name as the address of a website that mirrors and mimics Complainant’s official website without any authority or permission and contains links to the Complainant’s official website. The presentation, style and content of Respondent’s website gives the impression that it is owned and controlled by Complainant. This Panel finds that such impersonation and misrepresentation is use of the disputed domain name in bad faith.
Additionally, the registration and use of the disputed domain name which has been chosen and registered to create confusion with Complainant, its reputation, marks and website is a classic example of typosquatting designed to take advantage of Internet users’ typographical errors or otherwise confuse Internet users.
This Panel finds therefore on the balance of probabilities that the disputed domain name was registered and is being used in bad faith. As Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) it is entitled to the reliefs sought in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <philiips66.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: March 13, 2020
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