In Enbridge, Inc. v. Excelerate Energy, LP (Opp. No. 91170364) , the Trademark Trial and Appeal Board (“TTAB”) unanimously denied the motion for summary judgment brought by Opposer Enbridge, Inc. (“Enbridge”) based on fraud. The TTAB found that there was not “clear and convincing” evidence that Applicant Excelerate Energy, LP (“Excelerate”) intended to deceive the USPTO.

On June 25, 2005, Excelerate registered the mark “ENERGY BRIDGE” for “transmission of oil and gas through pipelines and ships” in International Class 39 and for “production of energy” in International Class 40.” Thereafter, Enbridge filed a notice of opposition to the registration of the mark, alleging priority and likelihood of confusion under section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), dilution under section 43, 15 U.S.C. § 1125, and mere descriptiveness under section 2(e)(1), 15 U.S.C. § 1052(e)(1). On January 26, 2007, the TTAB entered a consented amendment to the identification of services in International Classes 39 and 40 in Excelerate’s application. Thereafter, Enbridge amended their notice of opposition, adding claims of fraud. Enbridge subsequently filed a motion for summary judgment on the issue of fraud.

In support of its summary judgment motion, Enbridge argued that Excelerate committed fraud because it knew or should have known that it was not using its mark on the services identified in the application. Specifically, Enbridge argued that Excelerate has not used its mark for “transmission of oil” in Class 39 or “production of energy” in Class 40 in the original June 25, 2005 application. Moreover, Enbridge argued that Excelerate Energy has not used its mark for the transmission of natural gas by means of “liquefaction in the country of severance,” “shipboard liquefaction,” and “through onshore pipelines” in Class 39 or “production of energy” or “treatment of natural gas for the production of energy via liquefaction in the country of severance,” in Class 40 in the amended application.

Fraud occurs when an applicant knowingly makes a false, material representation with the intent to deceive the USPTO. In re Bose Corp., 91 USPQ2d 1938 (Fed. Cir. 2009). The standard for finding intent to deceive is stricter than the standard for negligence or gross negligence, and evidence of deceptive intent must be clear and convincing. Id. at 1941. Any doubts must be resolved against the party making a claim of fraud. Id. at 1939.

In support of their allegations of fraud, Enbridge submitted materials under the declaration of attorney Saundra L.M. Riley. Such materials included the discovery deposition transcript of Kathleen Eisbrenner, Excelerate’s former President and Chief Executive Officer. Specifically, Enbridge relied on the deposition insofar as it indicated that Excelerate was not engaged in nor did Excelerate have plans to enter the fields in connection with Class 39 and 40 services.

Admitting it did not provide “transmission of oil” services, Excelerate characterized the statement in their application as an honest mistake. With regard to the allegations about “production of energy,” Excelerate maintained their involvement with this service and suggested the terms are open to different interpretations. Excelerate rebutted that the opinion of Ms. Eisbrenner “does not amount to a binding legal conclusion” and submitted into evidence examples of how their services fall within that gamut. Excelerate introduced pages from their website, pages from the Federal Energy Regulatory Commission’s website, excerpts from Enbridge’s discovery responses, and dictionary definitions of “production,” “produce,” and “energy.”

The TTAB reasoned that at a minimum, whether Excelerate knowingly made any representations of use with the intent to deceive the USPTO remains a genuine issue of fact to be determined at trial. The record includes no specific, industry-specific definition of “production of energy.” Given that, a genuine issue exists whether Enbridge’s statement that it was using its mark in connection with “production of energy” was false. Thus, Enbridge’s failed to meet the requisite burden of proof, and their motion for summary judgment was denied.