DECISION

 

Phillips 66 Company v. NameSilo, LLC / Domain Administrator

Claim Number: FA2407002107618

 

PARTIES

Complainant is Phillips 66 Company ("Complainant"), represented by Craig Stone, Texas, USA. Respondent is NameSilo, LLC / Domain Administrator ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <phillips66cities.buzz>, registered with NameSilo, LLC.

 

PANEL

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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 23, 2024; Forum received payment on July 23, 2024.

 

On July 23, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <phillips66cities.buzz> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 26, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 15, 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@phillips66cities.buzz. Also on July 26, 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 August 16, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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

i) Complainant and its predecessors in interest have engaged in the world-wide manufacture, marketing, distribution, and sale of high-quality petroleum products and services. Complainant's PHILLIPS 66 marks have been extensively advertised and promoted for nearly a century. Complainant has rights in the PHILLIPS 66 mark, among others, through its registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 255,501, registered on April 23, 1929). The disputed domain name  is confusingly similar to Complainant's PHILLIPS 66 mark as it incorporates the mark in its entirety while adding the generic term "cities" and the ".buzz" gTLD.

         

ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its PHILLIPS 66 mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Respondent uses the domain name to direct users to a website with a fraudulent phishing scheme.

 

iii) Respondent registered and uses the disputed domain name in bad faith. Respondent is attempting to engage in a fraudulent scam whereby it impersonates Complainant in an effort to scam individuals by setting up a fraudulent phishing scheme. Respondent had actual knowledge of Complainant's rights in the mark.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on June 21, 2024.

        

2. Complainant has established rights in the PHILLIPS 66 mark, among others, through its registration with the USPTO (e.g., Reg. No. 255,501, registered April 23, 1929).

 

3. Respondent has used the disputed domain name to direct users to websites, making the domain name appear legitimate and affiliated with Complainant by using Complainant's registered tagline "Providing Energy. Improving Lives." in conjunction with a login screen for a targeted individual to provide login credentials via a phishing-style get-rich-quick scheme.

 

4. This fraudulent scheme is bolstered by the use of the Phillips 66 Shield logo as a favicon in the browser tab adjacent to the word "Login."

 

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

Complainant claims rights in the PHILLIPS 66 mark based upon registration of the mark with the USPTO (e.g., Reg. No. 255,501, registered April 23, 1929). Complainant provides a copy of its USPTO registration for the PHILLIPS 66 mark. Registration of a mark with the USPTO is sufficient to establish rights in that mark per Policy ¶ 4(a)(i). Therefore, the Panel finds that Complainant has established rights in the PHILLIPS 66 mark under Policy ¶ 4(a)(i).

         

Next, Complainant argues the disputed domain name <phillips66cities.buzz> is confusingly similar to Complainant's PHILLIPS 66 mark as it incorporates the mark in its entirety and is differentiated only by the addition of the generic term "cities" and the "buzz" gTLD. An addition to a complainant's mark such as a generic and/or descriptive term and a gTLD does not negate any confusing similarity between a disputed domain name and 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); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant's registered mark). Therefore, the Panel finds that the disputed domain name is confusingly similar to the PHILLIPS 66 mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Section 2.1, WIPO Jurisprudential Overview 3.0 ("Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.").

         

Complainant asserts Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its PHILLIPS 66 mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. The unmasked WHOIS information identifies Respondent as "NameSilo, LLC / Domain Administrator." Thus, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

         

Complainant further contends Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any noncommercial or fair use. Respondent has used the disputed domain name to engage in a fraudulent scam by impersonating Complainant in an effort to scam individuals. Under Policy ¶¶ 4(c)(i) and (iii), panels have found that respondent's attempts to use a disputed domain name to pass itself off as complainants is not a bona fide offering of goods or services or legitimate noncommercial or fair use.  See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) ("Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use."). 

 

Complainant provides a screenshot of the disputed domain name's resolving website, making the domain name appear legitimate and affiliated with Complainant by using Complainant's registered tagline "Providing Energy. Improving Lives." in conjunction with a login screen for a targeted individual to provide login credentials via a phishing-style get-rich-quick scheme. The Panel further notes that this fraudulent scheme is bolstered by the use of the Phillips 66 Shield logo as a favicon in the browser tab adjacent to the word "Login." The Panel therefore finds the use of the disputed domain name to impersonate Complainant in connection with the phishing scheme fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant contends that Respondent is attempting to impersonate Complainant in connection with a phishing scheme in order to illegally profit on Complainant's goodwill and brand awareness. The Panel recalls that Complainant provides a screenshot of the disputed domain name's resolving website, making the domain name appear legitimate and affiliated with Complainant by using Complainant's registered tagline "Providing Energy. Improving Lives." in conjunction with a login screen for a targeted individual to provide login credentials via a phishing-style get-rich-quick scheme. The Panel further notes that this fraudulent scheme is bolstered by the use of the Phillips 66 Shield logo as a favicon in the browser tab adjacent to the word "Login." The Panel observes that registering and using a disputed domain name that fraudulently phishes for personal information may be evidence of bad faith.  See Google Inc. v. Domain Admin / Whois Privacy Corp., FA 1622862 (Forum Aug. 10, 2015) (finding that the respondent's apparent use of the disputed domain name in furtherance of a 'phishing' scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). The Panel therefore finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Next, Complainant argues Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the PHILLIPS 66 mark. While constructive notice is not sufficient to support a bad faith finding, actual knowledge may constitute a bad faith registration. Complainant contends Respondent had knowledge of Complainant's rights in the mark given the longstanding use of Complainant's mark. The Panel infers, due to the notoriety of Complainant's mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant's rights in the PHILLIPS 66 mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under 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 <phillips66cities.buzz> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: August 19, 2024