Phillips 66 Company v. Erik Wiik
Claim Number: FA2203001989044
Complainant is Phillips 66 Company (“Complainant”), represented by Alexandra H. Bistline of Pirkey Barber PLLC, Texas, USA. Respondent is Erik Wiik (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phillips66-ccs.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 21, 2022; the Forum received payment on March 21, 2022.
On March 21, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <phillips66-ccs.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 March 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2022 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-ccs.com. Also on March 23, 2022, 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 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that, for more than 90 years, it and its predecessors in interest have 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, in association with trademarks consisting of or incorporating PHILLIPS 66. Complainant and its predecessors have developed an extensive network of licensees and sub-licensees who manufacture, market, distribute and sell authorized products and services throughout the world in approximately 7,000 branded stations. Complainant also provides branded credit cards and debit cards in connection with its branded stations. In addition to automotive gasoline and diesel fuel, Complainant produces aviation fuels and markets them through independent marketers and dealers at approximately 800 branded operations facilities. Complainant is also one of the largest finished lubricant suppliers in the United States and sells products to many key business markets, including automotive, trucking, agriculture, aviation, power generation, mining and construction. Complainant also manages over 21,000 miles of crude oil, raw natural gas liquid, natural gas and petroleum product pipeline systems in the United States, including those partially owned and operated by affiliates. Complainant is ranked 48th on the 2021 Fortune 500 list and 61st on the 2020 Global Fortune list .Complainant has rights in the PHILLIPS 66 mark based on its registration of the mark in the United States in 2004. The mark is famous.
Complainant alleges that the disputed domain name is confusingly similar to its PHILLIPS 66 mark since it incorporates the entire mark and simply adds a hyphen and the abbreviation “ccs,” which stands for carbon capture and storage. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or permitted Respondent to use its PHILLIPS 66 mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name resolves to a parked page with hyperlinks to competing goods and services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent likely profits from the pay-per-click hyperlinks to competing goods and services on the resolving parked page. Respondent had actual knowledge of Complainant’s rights in the PHILLIPS 66 mark based on the fame of the mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PHILIPPS 66 uses it for the world-wide manufacture, marketing, distribution, and sale of high-quality petroleum products and services.
Complainant’s rights in its mark dates back to at least 2004.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a parked page that displays pay-per-click hyperlinks to products and services that compete with those of Complainant.
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”).
The disputed domain name incorporates Complainant’s PHILIPPS66 mark in its entirety and merely adds a hyphen and the abbreviation “ccs,” which stands for carbon capture and storage, together with the “.com” gTLD. The addition of a hyphen and an abbreviated term does not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). Thus the Panel finds that the <phillips66-ccs.com> domain name is confusingly similar to Complainant’s PHILLIPS 66 mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise permitted Respondent to use its PHILLIPS 66 mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information identifies “Erik Wiik” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked page with hyperlinks to goods and services that compete with those of Complainant. Hosting of pay-per-click hyperlinks to competing third-parties on a disputed domain name’s resolving website does not constitute bona fide offerings of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website is a parked page with competing hyperlinks. Respondent likely profits from those pay-per-click hyperlinks. Registration and use of a disputed domain name that resolves to a parked webpage with hyperlinks to competing third-parties may be evidence of a bad faith attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Therefore the Panel finds bad faith registration and use per Policy ¶ 4(b)(iv).
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-ccs.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 18, 2022
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