IZEA Worldwide Inc. v. Christian Williams / izea worldwide, inc.
Claim Number: FA2111001973176
Complainant is IZEA Worldwide Inc. (“Complainant”), represented by Amaris Gyebi of Beusse Sanks, PLLC, Florida, USA. Respondent is Christian Williams / izea worldwide, inc. (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <izeavip.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 12, 2021; the Forum received payment on November 12, 2021.
On November 15, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <izeavip.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 November 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 8, 2021 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 postmaster@izeavip.com. Also on November 18, 2021, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 16, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist. Pursuant to an Order of the Panel dated December 16, 2021 the Complainant filed details of a trade mark assignment showing its ownership of the registered mark IZEA on December 20, 2021.
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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant owns the trade mark IZEA registered, inter alia, in the USA for advertising services since at least 2008.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark containing it in its entirety with the addition of the generic term ‘vip’ and the gTLD “.com” which do not distinguish the Domain Name from the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The web site that was connected with the Domain Name used the Complainant’s trade mark to purport to offer advertising related services, but was in fact a scam site obtaining money for fraudulent purposes. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith diverting Internet users for commercial gain in actual knowledge of the Complainant’s rights and business. Customers have been actually confused by the site and deceived into paying money which appears to have been lost now the Respondent has deactivated its site. The Respondent appears to be connected to other domain name registrations containing the Complainant’s mark that were connected to other deceptive sites that bore the same logo and color scheme as the site that was attached to the Domain Name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark IZEA registered, inter alia, in the USA for advertising services since at least 2008.
The Domain Name registered in 2021 was used for a site offering competing services that has taken money from Internet users and now has been deactivated. Internet users have been confused and deceived by the Respondent’s use of the Domain Name into believing the web site attached to the Domain Name was connected with the Complainant.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of the Complainant's IZEA mark (which is registered, inter alia, in the USA for advertising services with first use recorded as 2008), the generic term ‘vip’ and a gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The addition of the generic term ‘vip’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark which is still recognizable in the Domain Name.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). The panel holds that the addition of the gTLD “.com” does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and is not authorized by the Complainant. The Respondent also appears to be known by the alternative name Christian Williams. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Accordingly the Panel finds that the Respondent is not commonly known by the Domain Name. The use of the Domain Name is commercial so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name uses the Complainant's mark to offer competing advertising services. It does not make it clear that there is no commercial connection with the Complainant. Internet users have been confused and deceived into investing money believing that the site attached to the Domain Name is connected to the Complainant. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (Passing off in furtherance of a suspected phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and visitors to the site have been deceived into believing that it is connected to or approved by the Complainant when it is not. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and/or services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
The Complainant has also brought evidence of other web sites attached to domain names containing the Complainant’s mark offering similar services using the same logo and colour scheme as the site attached to the Domain Name suggesting that the Respondent is involved in a pattern of bad faith activity. See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Forum Aug. 17, 2000) (finding that the respondent had registered numerous domain names that infringe upon the complainant’s marks).
Additionally in identifying itself as IZEA Worldwide Inc. the Respondent has used false information in the WhoIS database which is an indication of bad faith. See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <izeavip.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 20, 2021
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