Dakota Access, LLC (c/o Energy Transfer LP) v John Saldis
Claim Number: FA1906001849464
Complainant is Dakota Access LLC (c/o Energy Transfer LP) (“Complainant”), represented by Lisa Coleman of Energy Transfer LP, Texas, USA. Respondent is John Saldis (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dakotaaccesspipeline.com>, registered with GoDaddy.com, 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.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 25, 2019; the Forum received payment on July 3, 2019.
On June 25, 2019, GoDaddy.com, LLC; GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dakotaaccesspipeline.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 2019 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 firstname.lastname@example.org. Also on July 11, 2019, 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.
A timely Response was received and determined to be complete on July 31, 2019.
On August 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Complainant asserts that the name “Dakota Access Pipeline” has been used by its operator, Dakota Access, LLC, which is a subsidiary of Energy Transfer LP.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. The Panel notes that Complainant has not provided evidence to demonstrate the link between the two entities (the Panel notes that Complainant has provided as supporting evidence a presentation deck by Energy Transfer LP, but that presentation deck does not reference to Dakota Access, LLC). However, having considered the merits of the Complaint, the Panel considers that the issue of multiple complainants is not material to the Panel's decision. Therefore, the Panel is prepared to rely on Complainant's assertion and treats the multiple complainants as a single entity in this proceeding. In this decision, for convenience, the Panel will refer to the two entities collectively as “Complainant”.
Complainant operates the “Dakota Access Pipeline,” a well-known and highly publicized crude oil pipeline that transports crude oil from the Bakken Formation in North Dakota to crude oil storage hubs in Pakota, Illinois and Nederland, Texas. Complainant has used the DAKOTA ACCESS PIPELINE name in publicity materials, contracts, and filings with state and federal regulatory agencies. The DAKOTA ACCESS PIPELINE name is identical to the disputed domain name.
Respondent lacks rights and interest in the disputed domain name as Respondent is not an owner or operator of the DAKOTA ACCESS PIPELINE.
Respondent has attempted to extort financial benefits from Complainant for access to the disputed domain name. Respondent registered the disputed domain name in bad faith because Respondent does not have legitimate interest in the disputed domain name.
Respondent intends to use the disputed domain name for news purposes. Respondent has made no offers of sale of the domain name and does not intend to. Respondent asserts that Complainant's true intent in this proceeding is meant to harass and intimidate Respondent into giving up the domain name by making unsupported legal claims. Complainant's claim of extortion is not based on fact, and thus Complainant has no evidence to support the claim as a result.
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.
The Panel finds that Complainant has failed to satisfy this element.
Policy ¶ 4(a)(i) does not require a complainant to own a trademark registration if it can demonstrate established common law rights in the mark. Here, Complainant has not adduced any evidence of trademark registration; Complainant contends Complainant has used the DAKOTA ACCESS PIPELINE name in publicity materials, contracts, and filings with state and federal regulatory agencies. However, to establish common law rights in a mark, a complainant must prove with evidence of its use of and/or association with the mark. Here, Complainant has not produced the said "publicity materials, contracts, and filings with state and federal regulatory agencies". The only supporting evidence adduced by Complainant is a presentation deck named "Energy Transfer LP Investor Presentation – June 2019". It is unclear to the Panel how this presentation deck supports Complainant's contention. This 45-page presentation deck seems to only have one reference to "Dakota Access Pipeline" in a map, without any elaboration as to the relationship of "Dakota Access Pipeline" with either Dakota Access, LLC or Energy Transfer LP. In addition, while the timing of when a complainant has acquired common law rights in a mark is not relevant for the panel in deciding on this element, the Panel notes that this presentation deck is dated June 2019, which is later than the creation date of the disputed domain name (September 18, 2016).
In the circumstances, the Panel considers that Complainant has failed to prove that it has the requisite rights under this element.
Since the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel does not have to analyze the other two elements of the Policy.
For completeness, however, the Panel wishes to comment on why the Panel considers that Complainant also fails to establish the other two elements of the Policy.
Under Policy ¶ 4(a)(ii), Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, then the burden shifts to Respondent to show it does have rights or legitimate interests. Complainant argues Respondent lacks rights in the disputed domain name as Respondent is not an owner or operator of the DAKOTA ACCESS PIPELINE and Respondent has no interest in the DAKOTA ACCESS PIPELINE. However, the Panel notes that Complainant fails to substantiate these arguments with any evidence or facts. Thus, the Panel is unable to accept Complainant's mere assertions of lack of rights or legitimate interest, and considers that Complainant fails to make a prima facie showing under Policy ¶ 4(a)(ii).
In its Response, Respondent denies such act of extortion.
The Panel notes that Complainant has not adduced any evidence to support its contentions of bad faith. It is well-established under this element that mere assertions of bad faith are not sufficient to prove bad faith under the Policy.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <dakotaaccesspipeline.com> domain name REMAIN WITH Respondent.
Eugene I. Low, Panelist
Dated: August 6, 2019
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