DECISION

 

Phillips 66 Company v. Peter Nickel

Claim Number: FA2407002104608

 

PARTIES

Complainant is Phillips 66 Company ("Complainant"), represented by Craig Stone, Texas, USA. Respondent is Peter Nickel ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <phillips66inc.com>, registered with HOSTINGER operations, UAB.

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 1, 2024; Forum received payment on July 1, 2024.

 

On July 3, 2024, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <phillips66inc.com> domain name is registered with HOSTINGER operations, UAB and that Respondent is the current registrant of the name. HOSTINGER operations, UAB has verified that Respondent is bound by the HOSTINGER operations, UAB 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 July 3, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 23, 2024 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@phillips66inc.com. Also on July 3, 2024, 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 July 24, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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

Complainant states that, for over 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 PHILLIPS 66 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 70,000 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 26th on the 2024 Fortune 500 list and 37th on the 2024 Global Fortune 500 list. Complainant asserts rights to the PHILLIPS 66 mark based upon its registration in the United States in 1929. The mark is famous.

 

Complainant alleges that the disputed domain name is confusingly similar to its PHILLIPS 66 mark as it incorporates the mark in its entirety and merely adds the term "inc" (which stands for "incorporated") together with the ".com" generic top-level domain ("gTLD").

 

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 is not authorized or permitted to use Complainant's mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name is redirected to Complainant's legitimate website, and was used in furtherance of email phishing.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name is redirected to Complainant's legitimate website and was used in furtherance of phishing. Respondent had actual or constructive knowledge of Complainant's mark. Respondent used a privacy service.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark PHILLIPS 66 and uses it to market petroleum products and services. The mark is well known.

 

Complainant's rights in its mark date back to 1929.

 

The disputed domain name was registered in 2024.

 

The disputed domain name is not being used.

 

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 disputed domain incorporates Complainant's PHILLIPS 66 mark in its entirety, and merely adds the term "inc" (which stands for "incorporated") together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic or meaningless terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. 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 Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.' These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same). Here, the WHOIS information for the disputed domain name shows the registrant's name as "Peter Nickel". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant alleges that the disputed domain name is redirected to its legitimate website. In support, it provides a LinkedIn post which states that fraudsters are using the disputed domain name to redirect to Complainant's legitimate website. However, there is no direct evidence of such redirection in the Complaint. The Panel need not consider unsupported allegations. See Richard Izzo Toughman Enterprises v. TJ Tryon, FA 1728347 (Forum May 30, 2017) ("While this Panel is willing to give Complainant some leeway because Complainant is pro se, that does not allow Complainant to ignore its burden of proof. A complainant fails to make a prima facie case when it fails to provide any evidence whatsoever of a respondent's use of a disputed domain name."); see also Chrome Bones / CB Luxury Brands, LLC v. Laursen, Shawn / Shawn's pasta & bake shop, FA 1787926 (Forum June 27, 2018) ("Complainant's evidence of secondary meaning consists only of its unsupported assertion that it has used the mark since 2000. … Respondent's default in this matter notwithstanding, the evidence before the Panel utterly fails to demonstrate that Complainant's trademark rights accrued prior to April 2003, when Respondent registered the Domain Name."). Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further consider it.

 

Complainant alleges that the disputed domain name may be used in furtherance of a fraudulent email phishing scheme. In support, it provides a LinkedIn post which states that fraudsters are using the disputed domain name in fraudulent emails. However, there is no direct evidence of such use in the Complaint. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further consider it.

 

According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), a Panel may conduct limited factual research regarding disputed domain names:

 

Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.

 

This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.

 

The disputed domain name does not appear to resolve to a web site at present. A search in the Internet Archive indicates that the disputed domain name did not appear to be used in the past. There do not appear to be MX records for the disputed domain name, therefore it does not appear that it could, at present, be used for emails.

 

The Panel finds that Complainant has failed to satisfy its burden of proof for the allegation that the disputed domain name was or could be used for email phishing.

 

On the basis of its research, the Panel finds that the disputed domain name is not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) ("Respondent is wholly appropriating Complainant's mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant's mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii)."). Therefore, the Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

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 disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put."

 

In the present case, Complainant's trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) ("Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy"); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant's well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int'l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) ("The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith.").

 

There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

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 <phillips66inc.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: July 24, 2024