Phillips 66 Company v. Fossil Universal / Fossil
Claim Number: FA2011001920170
Complainant is Phillips 66 Company (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, United States. Respondent is Fossil Universal / Fossil (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66energy.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2020. The Forum received payment on November 10, 2020.
On November 10, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <phillips66energy.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 November 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 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@phillips66energy.com. Also on November 11, 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 December 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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, Phillips 66 Company, is 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. Complainant has rights in the PHILLIPS 66 mark through numerous registrations including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <phillips66energy.com> domain name is essentially identical and confusingly similar to Complainant’s PHILLIPS 66 mark.
Respondent lacks rights and legitimate interests in the <phillips66energy.com> domain name as Respondent is not commonly known by the domain name and is not an authorized user or licensee of the PHILLIPS 66 mark. Respondent does not use the domain name to make a bona fide offer of goods or services, nor for a legitimate noncommercial or fair use. In fact, Respondent has not made use of, or demonstrated preparation to make use of the domain name, which resolves to an inactive website displaying a generic “error” message. Respondent has established the email address humanresources@phillips66energy.com, which it uses to conduct a fraudulent scheme in which, masquerading as an employee of Complainant, Respondent invites individuals to apply for employment with Complainant and to pay visa fees on the basis that they will be reimbursed by Complainant.
Respondent registered the <phillips66energy.com> domain name with actual knowledge of Complainant’s rights in the PHILLIPS 66 mark, which is famous. The domain name was registered and is being used in bad faith to conduct a fraudulent scheme. Respondent’s failure to make active use of the domain name further displays bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the PHILLIPS 66 mark through multiple registrations, including USPTO registration Reg. 255,501, registered on April 23, 1929. Respondent’s <phillips66energy.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 mark, only differing by the addition of the generic term “energy”, which does nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The disputed domain name was registered on September 1, 2020, long after Complainant acquired rights in its PHILLIPS 66 mark, which is famous. See Phillips 66 Co. v. Brian Broaddus / Francis Broaddus, D2014-1336 (WIPO Oct. 1, 2014) (finding that Complainant’s marks “are famous and have a worldwide reputation”). The email address associated with the domain name, humanresources@phillips66energy.com, is being used by Respondent to masquerade as an employee of Complainant in order to deceive job seekers into believing that they have been offered employment with Complainant, so as to obtain from the recipient personal information and payments purportedly for visa processing fees for which the recipient will expect reimbursement by Complainant.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Respondent has made no attempt to do so. In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Given the fame of Complainant’s PHILLIPS 66 mark, the Panel finds that Respondent was well aware of Complainant and its mark when registering the domain name did so in order to profit from sending fraudulent emails impersonating Complainant. This clearly constitutes registration in bad faith.
Respondent’s use of the domain name for this purpose clearly constitutes use in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <phillips66energy.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 7, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page