NATIONAL ARBITRATION FORUM
URS FINAL DETERMINATION
BAS Services & Graphics, LLC. v. QA Graphics et al.
Claim Number: FA1406001562562
DOMAIN NAME
<bas.graphics>
PARTIES
Complainant: BAS Services & Graphics, LLC. Alper Uzmezler of Austin, TX, United States of America | |
Respondent: QA Graphics Dan McCarty of Ankeny, IA, United States of America | |
Respondent Representative: Brown Winick of Des Moines, IA, United States of America
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REGISTRIES and REGISTRARS
Registries: GRAPHICS Registry | |
Registrars: Godaddy LLC |
EXAMINER
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
Mr. Sebastian Matthew White Hughes, as Examiner |
PROCEDURAL HISTORY
Complainant Submitted: June 2, 2014 | |
Commencement: June 3, 2014 | |
Response Date: June 12, 2014 | |
Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
Clear and convincing evidence. |
FINDINGS and DISCUSSION
Findings of Fact: [OptionalComment] |
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Respondent Complainant relies upon (1) Complainant's 2011 Name Certificate filed with the State of Texas for "BAS Services & Graphics LLC"; (2) Complainant's 2014 Florida Limited Liability Company Annual Report; (3) Complainant's 2008 Florida Electronic Articles of Organization; and (4) Complainant's 2005 Application for Registration of Fictitious Name for "Building Automation Systems Service". None of these documents constitute a valid national or regional word mark registration. Complainant has not provided any evidence to satisfy the first limb of the URS. It follows that the Complaint must be denied on these grounds alone. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Respondent Whilst it is not strictly necessary to make a determination under this limb, the Examiner is satisfied, on the evidence, that Respondent has been providing services relating to BAS graphics since 2006.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Whilst it is not strictly necessary to make a determination under this limb, the Examiner finds, in all the circumstances, and given in particular the Examiner's finding under the second limb, Complainant has failed to establish the domain was registered and is being used in bad faith. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. Respondent has alleged that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
Respondent contends, as Complainant possesses no relevant trade mark rights, as the incident of consumer confusion relied upon by Complainant predated the date of registration of the domain name, as BAS graphics is a generic term, and as Respondent has been successful in relation to BAS graphics, these proceedings have been brought in order to harass Respondent, and constitute an abuse of the proceedings. It appears the proceedings have been brought under the misapprehension that Complainant can rely on common law rights, including Complainant's various company registration documents. The evidence does however show that Complainant possesses prior common law rights in the term BAS graphics, if nothing else, by virtue of Complainant's prior registration of the domain name <basgraphics.com>. In all the circumstances, the Examiner is not prepared to make a finding that the Complaint is an abuse of the proceedings or that the Complaint contained material falsehoods.
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has NOT demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be returned to
the control of Respondent:
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Mr. Sebastian Matthew White Hughes
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