DECISION

 

Phillips 66 Company v. s0qunzg2

Claim Number: FA2311002070404

PARTIES

Complainant is Phillips 66 Company ("Complainant"), represented by Ryan J. Miller of Pirkey Barber PLLC, Texas, USA. Respondent is s0qunzg2 ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <phillips-66.cc> and <phillips66mall.com>, registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 9, 2023; Forum received payment on November 9, 2023.

 

On November 10, 2023, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by e-mail to Forum that the <phillips-66.cc> and <phillips66mall.com> domain names are registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED and that Respondent is the current registrant of the name. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED 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 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 2023 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@phillips-66.cc, postmaster@phillips66mall.com. Also on November 13, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On December 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <phillips-66.cc> and <phillips66mall.com> domain names are confusingly similar to Complainant's PHILLIPS 66 mark.

 

2.       Respondent does not have any rights or legitimate interests in the <phillips-66.cc> and <phillips66mall.com> domain names.

 

3.       Respondent registered and uses the <phillips-66.cc> and <phillips66mall.com> domain names in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant is in the petroleum industry and holds a registration for the well-known PHILLIPS 66 mark with the United States Patent and Trademark Office ("USPTO") dating back to 1929 (Reg. No. 255,501).

 

Respondent registered the <phillips-66.cc> and <phillips66mall.com> domain names in July, 2022, and uses them to resolve to an inactive webpage.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has rights in the PHILLIPS 66 mark through registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).")

 

Respondent's <phillips-66.cc> and <phillips66mall.com> domain names use Complainant's PHILLIPS 66 mark and add either a hyphen or the word "mall" and a top level domain. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.) Therefore, the Panel finds that Respondent's <phillips-66.cc> and <phillips66mall.com> domain names are confusingly similar to Complainant's PHILLIPS 66 mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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.")

 

Complainant contends that Respondent has no rights or legitimate interests in the <phillips-66.cc> and <phillips66mall.com> domain names as Respondent is not commonly known by the domain names. Complainant has not given Respondent permission to use its PHILLIPS 66 mark. The WHOIS identifies "s0qunzg2" as the registrant of the disputed domain names.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names and thus has no rights under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). 

 

Complainant contends that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or legitimate noncommercial or fair use as the domain names do not resolve to an active webpage. Complainant provides screenshots showing that the disputed domain names resolve to a webpage displaying Complainant's mark but no active content. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) ("Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.")

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant alleges that Respondent registered and uses the disputed domain names in bad faith as Respondent has failed to make an active use of the domain names. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) ("Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.") 

 

Complainant contends that Respondent registered the disputed domain names with actual knowledge of Complainant's rights in the PHILLIPS 66 mark, as Respondent registered the domain names almost 100 years after Complainant adopted the mark. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Spotify AB v. The LINE The Line / The Line, FA 1801001765498 (Forum Feb. 6, 2018) (finding that the respondent had actual knowledge of the complainant's prior rights in and to its trademark given the totality of the circumstances, and thus the respondent engaged in bad faith use and registration of the disputed domain name when it registered the name).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <phillips-66.cc> and <phillips66mall.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: December 6, 2023