Phillips 66 Company v. Vanshita sharma / Ms
Claim Number: FA2005001896941
Complainant is Phillips 66 Company ("Complainant"), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Vanshita sharma / Ms ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillipz-66.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2020; the Forum received payment on May 19, 2020.
On May 19, 2020, NameCheap, Inc. confirmed by email to the Forum that the <phillipz-66.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 May 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 9, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@phillipz-66.com. Also on May 20, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 June 11, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 and its predecessors in interest have engaged in the worldwide manufacture, marketing, distribution, and sale of petroleum products and services for more than 90 years. Complainant is ranked 23rd on the 2019 Fortune 500 list and 54th on the 2019 Fortune Global 500 list. Complainant has used PHILLIPS 66 and related marks in connection with its products and services for nearly a century, and owns several United States registrations for the mark in various forms.
Respondent registered the disputed domain name <phillipz-66.com> in March 2020 through a privacy registration service. The domain name is being used for a page consisting of pay-per-click links to third-party websites; some of these links incorporate part or all of Complainant's PHILLIPS 66 mark. The domain name is also being used in connection with a fraudulent email scheme, in which email messages purporting to be from an employee of Complainant are sent to prospective job applicants, accompanied by an application form that includes numerous uses of Complainant's mark and logo along with other information related to Complainant. Complainant asserts that the purpose of the scheme is to induce recipients to provide personal information and likely make payments to Respondent with the expectation of reimbursement by Complainant. Complainant states that Respondent is not an employee or affiliate of Complainant; that Complainant has not authorized Respondent to recruit employees or take any other action on behalf of Complainant, nor licensed or otherwise permitted Respondent to use its marks; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <phillipz-66.com> is confusingly similar to its PHILLIPS 66 mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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:
(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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <phillipz-66.com> incorporates Complainant's registered PHILLIPS 66 trademark, substituting a letter "Z" for the "S" and a hyphen for 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, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, FA 1868439 (Forum Nov. 23, 2019) (finding <phillips-66.com> confusingly similar to PHILLIPS 66); Solar Turbines Inc. v. Miri Maza, FA 1838989 (Forum May 9, 2019) (finding <solarturbinez.com> confusingly similar to SOLAR TURBINES). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to display pay-per-click links and in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, FA 1868439, supra (finding lack of rights or interests arising from use of domain name in fraudulent email scheme); Harry Winston, Inc. v. [Redacted] / Winsfon, FA 1781418 (Forum May 14, 2018) (finding lack of rights or interests where domain name was used to display pay-per-click links and engage in fraudulent phishing scheme).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name calculated to create confusion with Complainant's mark, using a privacy registration service in an attempt to conceal her identity; and used the domain name to display pay-per-click links and in connection with a fraudulent phishing scheme. Such conduct is indicative of bad faith registration and use under the provisions cited above. See, e.g., Phillips 66 Co. v. Vanshita Sharma / Ms, FA 1868439, supra (finding bad faith by same Respondent in similar circumstances); Solar Turbines Inc. v. Miri Maza, supra (same); Harry Winston, Inc. v. [Redacted] / Winsfon, supra (finding bad faith based upon use of privacy registration service, pay-per-click links, and phishing scheme). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <phillipz-66.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 14, 2020
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