Izea Worldwide, Inc. v. nigeria vip izea
Claim Number: FA2111001973173
Complainant is Izea Worldwide, Inc. (“Complainant”), represented by Amaris C. Gyebi of Beusse Sanks, PLLC, Florida, USA. Respondent is nigeria vip izea (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vipizea.com>, registered with NameSilo, 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.
Sandra J. Franklin 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, NameSilo, LLC confirmed by e-mail to the Forum that the <vipizea.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 7, 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@vipizea.com. Also on November 17, 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 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
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
1. Respondent’s <vipizea.com> domain name is confusingly similar to Complainant’s IZEA mark.
2. Respondent does not have any rights or legitimate interests in the <vipizea.com> domain name.
3. Respondent registered and uses the <vipizea.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Izea Worldwide, Inc., creates and operates online marketplaces that connect marketers with content creators. Complainant holds a registration for the IZEA mark with the United States Patent and Trademark Office (“USPTO”) (3,538,739, registered Nov. 4, 2008).
Respondent registered the <vipizea.com> domain name on May 17, 2021, and it resolves to an inactive webpage.
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 Panel finds that Complainant has rights in the IZEA mark based on registration with USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <vipizea.com> domain name incorporates the entire IZEA mark, and adds the term “vip” and the “.com” gTLD. These changes do not distinguish a complainant’s mark from a disputed domain name under Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”) Therefore, the Panel finds that Respondent’s <vipizea.com> domain name is confusingly similar to Complainant’s IZEA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show 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”).
Complainant claims that Respondent does not have rights or legitimate interests in the <vipizea.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s IZEA mark. The WHOIS lists Respondent as “nigeria vip izea,” but there is no evidence to suggest that Respondent is actually know by the disputed domain name and, indeed, Respondent makes no use of the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant argues that Respondent does not use the <vipizea.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), making an inactive use of a disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”) Complainant demonstrates that there is no content at <vipizea.com>. Therefore, the Panel finds that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant also argues that Respondent registered and uses the <vipizea.com> domain name in bad faith to create initial interest confusion to attract users for commercial gain. Complainant claims that Respondent previously used the disputed domain name to defraud consumers by taking payments for advertised services but not providing them, and provides screenshots showing that Respondent posed as Complainant. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Sandhills Publishing Company v. sudeep banerjee / b3net.com, Inc., FA 1674572 (Forum June 17, 2016) (finding that the respondent took advantage of the confusing similarity between the <machinerytraderparts.com> domain name and the complainant’s MACHINERY TRADER mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vipizea.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 14, 2021
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