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

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:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

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.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.


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:


  1. The Complaint was neither abusive nor contained material falsehoods. 

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:

  1. bas.graphics

 


Mr. Sebastian Matthew White Hughes
Examiner
Dated: June 16, 2014

 

 

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