Texas Retail Provider Says Competitors Can't "Park" Unused Trade Names Which Lapse At SOS

August 11, 2021

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Copyright 2010-21 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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Young Energy filed a response at the Texas PUC objecting to MP2 Energy Texas LLC’s motion to intervene in a proceeding to address Young Energy's filing for a REP certificate amendment to, among other things, add the trade name "Cost Plus Power" to Young Energy's REP certificate

Young Energy's application to use the trade name Cost Plus Power had been first reported by EnergyChoiceMatters.com (see details here)

As previously reported, MP2 Energy Texas LLC has moved to intervene in the certificate amendment proceeding. MP2 noted in its motion that its assumed names on file with the Commission include "Cost Plus Energy." MP2 noted that its registration of the assumed name with the Texas Secretary of State had lapsed; however, on August 4, 2021 MP2 filed with the Secretary of State' s office to have the assumed name renewed and MP2 said that it received its Certificate of Filing from the Secretary of State's office on the same day

In its motion, MP2 said, "Under the Commission's Substantive Rule 25.107(e)(1)(B), a business name shall not be 'deceptive, misleading, vague ... or duplicative of a name previously approved for use by a REP certificate holder.' Given the similarity between Young Energy's proposed assumed name 'Cost Plus Power' and MP2's assumed name of 'Cost Plus Energy,' MP2 is concerned that granting Young Energy, LLC's amendment to use the assumed name 'Cost Plus Power' could be deceptive and misleading to customers. Additionally, granting the use of the name may adversely impact MP2's ability to use 'Cost Plus Energy' as an assumed name in the future by creating customer confusion."

In response, Young Energy noted that, on July 19, 2021 the Texas Secretary of State’s (“SOS”) office granted Young Energy the right to use "Cost Plus Power" as an assumed name. On July 22, 2021, Young Energy filed for an amendment to its Retail Electric Provider (REP) certification to remove the assumed name "Paga Menos" and replace it with the assumed name "Cost Plus Power."

Young Energy in its filing stated, "On August 4, 2021, MP2 filed a Motion to Intervene in this proceeding, and on the same day – August 4, 2021 – MP2 applied with the Texas Secretary of State’s office to reacquire the rights to the assumed name 'Cost Plus Energy' which it had once held but had abandoned almost three years ago (MP2 allowed the assumed name 'Cost Plus Energy' to become void at the SOS on August 20, 2018). As MP2 admits in its own Motion, 'MP2 has not been serving customers under this lapsed assumed name.' There is no indication that MP2 has made any use of the Cost Plus Energy name in the past 3 years or longer. Internet search results indicate that MP2’s assumed name Cost Plus Energy appears only in online directories of REPs, and there is no indication that MP2 operates or has operated www.costplusenergy.com."

Young Energy in its filing alleged that, "MP2 has no legal authority to use the name Cost Plus Energy in the State of Texas, including at the PUC. An assumed name certificate at the SOS 'is void at the end of the certificate's stated term, unless within six months preceding the certificate's expiration date the registrant files in the office of a county clerk and the secretary of state. . .' As stated above, MP2's legal authority to use Cost Plus Energy became void on August 20, 2018. Indeed, any entity, including Young Energy, could have applied for the name Cost Plus Energy at the SOS. When MP2's authority to use Cost Plus Energy as an assumed name became void, its lawful authority to use that name for its REP activities likewise was void as of August 20, 2018. MP2 should have then promptly filed an amendment to remove the name Cost Plus Energy from its REP certificate."

Young Energy in its filing stated that, "Past PUC precedent confirms that if an entity has no authority to use an assumed name at the SOS, then the entity also has no authority to use that name as an REP. See, e.g., Docket 33818, Application of Current Power and Light, LLC for an Amendment to Its Retail Electric Provider (REP) Certification, Order Deeming Application Deficient (Feb. 22, 2007). Additionally, the PUC’s REP application form requires proof of the SOS information approval of the involved assumed name."

Young Energy in its filing alleged that, "MP2’s right to use the name 'Cost Plus Energy' as a legal assumed name was void at the time of Young Energy’s application, and Young Energy has the priority claim on the name, 'Cost Plus Power.'"

Young Energy in its filing alleged that, "MP2 has demonstrated that it has no interest in marketing retail electricity to Texas consumers under the name Cost Plus Energy having abandoned the assumed name in 2018. MP2 has demonstrated no actual interest in using the name Cost Plus Energy beyond inserting itself in this proceeding in order to thwart the marketing plans of a competitor."

Young Energy in its filing said that, "Conversely, Young Energy lawfully received authority to use the name 'Cost Plus Power' from the Texas Secretary of State and has properly applied for use of the name Cost Plus Power for the purposes of marketing competitive retail electricity to Texas consumers. MP2 should not be allowed to be 'parked' on a retail electric provider assumed name any more than an entity is allowed to be parked on a trademark or assumed name at the Texas Secretary of State. MP2 has had its opportunity to use the name 'Cost Plus Power' and has failed to do so and has further failed to fulfill its legal obligations to use that name."

Docket 52342

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