DECISION
IZEA Worldwide, Inc. v. zhang shuo
Claim Number: FA2403002090027
PARTIES
Complainant is IZEA Worldwide, Inc. ("Complainant"), represented by Terry M. Sanks of Beusse Sanks, PLLC, Florida, USA. Respondent is zhang shuo ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <izeawap.com> and <izeatwap.top>, registered with Gname.com Pte. Ltd.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Hon. Karl v. Fink (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on March 25, 2024; Forum received payment on March 25, 2024.
On March 26, 2024, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <izeawap.com> and <izeatwap.top> domain names are registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the names. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 March 27, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of April 16, 2024 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@izeawap.com, postmaster@izeatwap.top. Also on March 27, 2024, the Chinese and English 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, Forum transmitted to the parties a Notification of Respondent Default in Chinese and English.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request considering the Chinese language Registration Agreement. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent's understanding of the English language. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, "It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.").
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to show that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
PARTIES' CONTENTIONS
A. Complainant
Complainant is the owner of trademark registrations for IZEA mark in the United States and has been using the trademarks in association with its "www.IZEA.com" website since 2003.
Respondent's disputed domain names are identical to or confusingly similar to Complainant's, IZEA mark. The disputed domain names domain names incorporate the IZEA mark in their entirety.
Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Respondent been authorized by Complainant to use the marks. Respondent has not used the disputed domain names in connection with a bona fide offering of goods or services.
Respondent registered and uses the disputed domain names in bad faith. Respondent registered and is using the disputed domain names to cause confusion with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <izeawap.com> and <izeatwap.top> domain names.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").
Identical and/or Confusingly Similar
Complainant's registration of the IZEA mark (registration No. 3,538,739, on November 4, 2008) and IZEAX mark (registration No. 4,632,001, on November 4, 2014) with the United States establishes Complainant's rights in the marks, as "registration of a mark with a legitimate governmental authority is sufficient under the Policy to allow a rebuttable presumption of rights in the mark." See Target Brands, Inc. v JK Internet Services, FA 349108 (Forum Dec. 14, 2004). The Panel finds that Complainant has rights in the marks under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain names are identical or confusingly similar to Complainant's registered trademarks. The disputed domain names incorporate Complainant's IZEA mark Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms does not prevent a finding of confusing similarity. See Rakuten, Inc. v. Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Matthew Connor, No Company, WIPO Case No. D2019-2983. Furthermore, the addition of a top-level domain is irrelevant for purposes of paragraph 4(a)(i) of the Policy. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs."). The Panel finds that the disputed domain names are identical or confusingly similar to Complainant's IZEA trademark. Because of this finding it is not necessary to make a finding concerning the IZEAX mark.
Complainant has proved this element.
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests"). The Panel finds that Complainant has made a prima facie case as to each domain name.
Complaint argues that Respondent has not been licensed, contracted, or otherwise permitted by the Complainant in any way to use the IZEA mark or to apply for any domain names incorporating the IZEA mark, nor has the Complainant acquiesced in any way to such use or application of the IZEA mark by the Respondent. There is no evidence of fair use and there is no evidence that the Respondent is using or plans to use the IZEA mark or the domain names incorporating the IZEA mark for a bona fide offering of goods or services. Complainant also argues that Respondent has been actively using the IZEA mark in the disputed domain names and on the physical websites to confuse users as to their authenticity. Such unauthorized use of the IZEA mark is likely to trick consumers into erroneously believing that Complainant is somehow affiliated with Respondent or endorsing its commercial activities. There is no evidence that Respondent has been commonly known by either of the disputed domain names.
WIPO Overview 3.0, Section 2.1 provides:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has proved this element.
Registration and Use in Bad Faith
Respondent had actual knowledge of Complainant's rights in the IZEA mark when it registered the disputed domain names. Respondent's prior knowledge of Complainant's IZEA mark is evident from the fame of Complainant's mark, the Respondent's use of the disputed domain names and the contents of the resolving websites. Respondent's registration and use of the disputed domain names with knowledge of Complainant's rights in the IZEA mark shows Respondent's bad faith registration and use of the disputed domain names pursuant to the Policy. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Ripple Labs Inc. v. Jessie McKoy/Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) ("Complainant contends Respondent's appropriation of Complainant's trademark was a clear intent to trade upon Complainant's reputation and goodwill in order to confuse Internet users.").
The Panel finds that Respondent registered and uses the domain names in bad faith.
Complainant has proved this element.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <izeawap.com> and <izeatwap.top> domain names be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
April 25, 2024
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