Energy Transfer LP v. Patrick Lawson / Houston Pipeline Inc
Claim Number: FA2012001924268
Complainant is Energy Transfer LP (“Complainant”), represented by Laura M. Franco of Winston & Strawn LLP, Texas, USA. Respondent is Patrick Lawson / Houston Pipeline Inc (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <houstonpipelinecorp.com>, registered with eNom, LLC.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 8, 2020; the Forum received payment on December 8, 2020.
On December 9, 2020, eNom, LLC confirmed by e-mail to the Forum that the <houstonpipelinecorp.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 December 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 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@houstonpipelinecorp.com. Also on December 10, 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 January 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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, Energy Transfer LP, is a provider of midstream energy services and engages in the transportation of gas to towns in counties across Texas. Complainant has common law rights in the trademark HOUSTON PIPE LINE COMPANY based upon its longstanding use thereof in commerce since 1925 by a wholly-owned subsidiary called Houston Pipeline Company LP. Respondent’s <houstonpipelinecorp.com> domain name, registered on November 11, 2018, is confusingly similar to Complainant’s HOUSTON PIPE LINE COMPANY mark since it incorporates the majority of the mark, merely adding the generic term “corp.”
Respondent does not have rights or legitimate interests in the <houstonpipelinecorp.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s HOUSTON PIPE LINE COMPANY mark. Additionally, 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, Respondent uses the disputed domain name to pass itself off as Complainant in furtherance of a fraudulent email scam.
Respondent registered and uses the <houstonpipelinecorp.com> domain name in bad faith. Respondent displays a fraudulent webpage and impersonates Complainant in furtherance of an email phishing scheme. Further, Respondent had actual knowledge of Complainant’s rights in the HOUSTON PIPE LINE COMPANY mark at the time it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent in bad faith.
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 and evidence 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 and supported 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 asserts common law rights in the HOUSTON PIPE LINE COMPANY mark based upon the longstanding use thereof by its wholly-owned subsidiary company. As a matter of procedure, business entities have standing to assert trademark rights that are owned through such parent-child relationships. See Plantronics, Inc. v. Aykut Saglam, FA 1907681 (Forum Sep. 2, 2020) (“A separate company, Polycom, Inc. has offered quality tele-presence, video, and voice equipment, applications, and services under the POLYCOM mark since at least as early as 1992. In 2018, Polycom was acquired by Complainant and is now a wholly-owned subsidiary of Complainant.”)
Further, Under Policy ¶ 4(a)(i), registration of a claimed trademark is unnecessary when a complainant can establish common law rights in a mark. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”). To establish common law rights in a mark, a complainant must show that the mark has acquired a secondary meaning with the relevant segment of consumers. See Lokai Holdings, LLC v. Domain Admin / Whois Privacy Corp., 1763598 (Forum Jan. 22, 2018) (Complainant established common law rights with evidence of secondary meaning, including “annual sales of $50 million” and “advertisements of Complainant’s FIND YOUR BALANCE bracelets from Google searches, advertisements for Complainant’s goods found on social media, and a certification from Mark Izen, Complainant’s manager.”). Complainant claims that the HOUSTON PIPE LINE COMPANY mark has been used in commerce since 1925 and it submits a Declaration to this effect signed by one of its senior executives. It also provides photographs showing how its mark is displayed on signage, a map showing its extensive network of energy pipelines and related assets throughout the state of Texas, and screenshots indicating that Complainant is ranked at No. 58 on the Fortune® 500 list of the United States’ largest companies. Respondent has not participated in this case and so it does not contest these assertions and evidence. The Panel thus finds that Complainant has rights in the HOUSTON PIPE LINE COMPANY mark per the threshold standing requirement of Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <houstonpipelinecorp.com> domain name is confusingly similar to the HOUSTON PIPE LINE COMPANY mark since it incorporates the majority of the mark, merely replacing the generic term “company” with the term “corp.” and adding a gTLD. The addition of a generic term and a gTLD to a mark is most often insufficient to distinguish a disputed domain name from that mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”) In light of the very minor differences noted herein, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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 argues that Respondent does not have rights or legitimate interests in the <houstonpipelinecorp.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s HOUSTON PIPE LINE COMPANY mark. WHOIS information may be used to help determine whether a respondent has rights or legitimate interests in a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding that a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated that the respondent is not commonly known by the domain name). However, even if the relevant WHOIS information bears some resemblance to the disputed domain name, the Panel may still find that the respondent lacks rights or legitimate interests under circumstances where such information appears to be false, where the respondent lacks authorization to use the complainant’s mark, or where the respondent fails to provide affirmative evidence in support of this identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity. This, combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, lead the Panel to conclude that Respondent is not commonly known by the domain name). The WHOIS information for the <houstonpipelinecorp.com> domain name identifies the registrant as “Patrick Lawson / Houston Pipeline Inc.” but Complainant has submitted evidence that this is very likely false information provided in the WHOIS record as part of a scam. Respondent has not participated in this case and so it provides no affirmative evidence in support of this alleged identity. Furthermore, no evidence in the record suggests that Respondent is authorized to use the HOUSTON PIPE LINE COMPANY mark. Based upon the evidence before it, the Panel is unable to find that Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims that Respondent fails to use the <houstonpipelinecorp.com> domain name in connection with a bona fide offering of goods or services and that it does not make a legitimate noncommercial or fair use thereof. Rather, it is asserted, Respondent uses the disputed domain name to pass itself off as Complainant in furtherance of a fraudulent email scam. Use of a disputed domain name to pass oneself off as a complainant for commercial benefit is not considered to be 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). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass itself off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). In support of its claims Complainant provides copies of email exchanges between a third-party supplier of chemical products and someone posing as one of Complainant’s employees using the email address <patrick@houstonpipelinecorp.com>. In this exchange, Respondent, using a false name and displaying the postal address of one of Complainant’s own office locations, initially seeks pricing information and eventually places an order for a large quantity of chemicals from the identified supplier. Respondent also submits, to the supplier, a credit application using what is claimed to be false references. Later in the transaction, Respondent sent letters to the supplier on letterhead that purports to be from Complainant listing Complainant’s address and displaying a corporate seal stating “Houston Pipe Line Co. LP”. Respondent appears to have taken delivery of the ordered chemicals but payment to the supplier was never made and the supplier’s attempts at contacting Respondent have ultimately met with silence. Complainant also submits a screenshot of the website resolving from the disputed domain name which purports to be operated by Complainant and displays the postal address of Complainant’s headquarters office. Respondent has filed no Response and has made no other submission in this case to explain its actions or to rebut the Complainant’s evidence. As such, the Panel finds that Complainant has made out a prima facie case which has not been rebutted by Respondent. The Panel thus concludes that Respondent’s use of the disputed domain name in furtherance of a scam in which it passes itself off as Complainant does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the HOUSTON PIPE LINE COMPANY mark when it registered the <houstonpipelinecorp.com> domain name. Actual knowledge of a Complainant’s rights in a mark may provide the foundation upon which a finding of bad faith can be built under Policy ¶ 4(a)(iii) and can be shown by the entirety of circumstances surrounding registration and use of the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”) Complainant argues that Respondent’s knowledge of the mark is clear from Respondent’s use thereof, as well as the appearance of Complainant’s own office postal addresses in emails and a website, to pass itself off as Complainant in furtherance of a scam. The Panel agrees that Respondent’s actual knowledge is evident in these circumstances.
Further, Complainant claims that Respondent registered and uses the <houstonpipelinecorp.com> domain name in bad faith since Respondent displays a fraudulent webpage and impersonates Complainant in an email phishing scheme. Passing oneself off as a complainant through a website or emails associated with a disputed domain name as part of a scam is evidence of bad faith per Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). As previously noted, Complainant provides a screenshot of the website resolving at the disputed domain, which purports to be operated by Complainant. It also provides copies of emails sent by Respondent from an address associated with the disputed domain name as well as letters on false letterhead in which Respondent misrepresents itself as Complainant’s affiliate to place a fraudulent order with a third-party chemical product supplier for Respondent’s commercial gain. Respondent has not submitted any argument or evidence to counter Complainant’s claims and, upon a preponderance of the available evidence, the Panel finds bad faith registration and use of the disputed domain name 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 <houstonpipelinecorp.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: January 7, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page