IZEA Worldwide, Inc. v. maggie samantha
Claim Number: FA2111001973180
Complainant is IZEA Worldwide, Inc. (“Complainant”), represented by Amaris C. Gyebi of Beusse Sanks, PLLC, Florida, USA. Respondent is maggie samantha (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <izea88.com>, registered with GoDaddy.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 12, 2021; the Forum received payment on November 15, 2021.
On November 15, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <izea88.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 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@izea88.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 10, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, IZEA Worldwide, engages in the business of marketing and advertising for others via the internet.
Complainant owns rights in the IZEA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <izea88.com> domain name is identical or confusingly similar to Complainant’s IZEA mark, as it incorporates the mark in its entirety, only adding the number “88” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <izea88.com> domain name. Respondent is not an authorized user or licensee of the IZEA mark, nor is Respondent commonly known by the at-issue domain name. Further, Respondent is not using the domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use, as the Respondent uses the resolving website to mimic Complainant’s website, offering competing services, and engages in a scheme to defraud internet users in search of Complainant.
Respondent registered and uses the <izea88.com> domain name in bad faith. Respondent has demonstrated a pattern of bad faith registration as Complainant asserts that Respondent is the same entity that registered the <vipizea.com> and <izeavip.com> domain names. Respondent also attempts to attract uses for commercial gain, portraying an association or affiliation with Complainant. Further, Respondent engages in a phishing scheme, defrauding potential customers of Complainant’s. Moreover, Complainant contends that Respondent provided false information to the WHOIS database when registering the <izea88.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the IZEA trademarks.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the IZEA trademarks.
Respondent uses the at-issue domain name to pass itself off as Complainant via email and otherwise and to address a website offering competing services, all in furtherance of fraud.
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”).
Complainant shows that it has a USPTO registration for its IZEA trademark. Such registration is sufficient to demonstrate Complainant’s rights in the IZEA mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <izea88.com> domain name contains Complainant’s IZEA trademark, followed by the number “88” with all followed by the top-level domain name, “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish Respondent’s <izea88.com> domain name from the IZEA trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <izea88.com> domain name is confusingly similar to Complainant’s IZEA trademark. See Twentieth Century Fox Film Corporation v. Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”); see also Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <izea88.com> identifies the domain name’s registrant as “maggie samantha” and the record before the Panel contains no evidence showing that Respondent is commonly known by the <izea88.com> domain name or by IZEA. The Panel therefore concludes that Respondent is not commonly known by the <izea88.com>domain name for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name);
Respondent uses <izea88.com> to pass itself off as Complainant and address a website purporting to offer products for sale that compete with those products offered by Complainant. The <izea88.com> website mimics Complainant’s official website in content and design. Respondent’s use the of the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also, ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”). Likewise, Respondent’s likely intent to use the domain name in furtherance of fraud is also neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent uses the confusingly similar <izea88.com> domain name to address a website mimicking Complainant’s official website and offering products that are in competition with Complainant’s products. Using a confusingly similar domain name in such manner is disruptive to Complainant’s business and falsely indicates that there is a sanctioned relationship between Complainant and Respondent when there is no such relationship. Such use of the domain name demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Twitter v. Domain Admin, FA 1607451 (Forum Apr. 2, 2015) (“Respondent’s use of the domain name disrupted Complainant’s business and misappropriated the trademark value of Complainant’s mark to wrangle visitors to its website thereby demonstrating Respondent’s bad faith registration and use of the name pursuant to Policy ¶ 4(b)(iii).”); see also, Walgreen Co. v. MUHAMMAD SALEEM / WALGREENSGENERAL TRADING LLC, FA 1790453 (Forum July 1, 2018) (“Respondent’s registration and use of the confusingly similar <walgreensshop.com> domain name in furtherance of trading competitively on Complainant’s WALGREENS trademark demonstrates Respondent’s bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).”).
Next, Respondent, under different names, has registered multiple domain names incorporating Complainant’s IZEA trademark. These domain names are currently the subject of separate UDRP complaints by Complainant. Respondent’s multiple domain name registrations that contain Complainant’s trademark suggests a pattern of bad faith domain name registration and use and further suggest Respondent’s bad faith in the instant case under Policy ¶ 4(b)(ii). See Deutsche Telekom AG v. Dana Dudones, FA 1798440 (Forum Sept. 7, 2018) (“Here the same registrant registered the seven disputed domain names over a two-day period [. . .] Thus the Panel finds that Respondent’s registration of multiple domain names in the present case evinces bad faith registration under Policy ¶ 4(b)(ii).”); see also H-D U.S.A., LLC v. zhangzongze / sweden / zhang jinxian / canada goose / harleydavidson / harley davidson, FA1410001587625 (Forum Dec. 10, 2014) (“The Panel agrees that the case relates to the same Respondent here, and Respondent’s history of bad faith suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii), especially given the presence of three domain names in this proceeding that incorporate the HARLEY-DAVIDSON mark.”). Notably, Respondent’s other IZEA laden domain name registrations were used to defraud internet users. It is thus reasonable to assume that Respondent’s <izea88.com> registration was also intended to facilitate fraud. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”); see also Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the IZEA mark when it registered <izea88.com> as a domain name. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark; from Respondent’s registration of other domain names containing the IZEA trademark; and from Respondent’s mimicry of Complainant’s official website in the website addressed by <izea88.com>. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith registration and use of <izea88.com> pursuant to Policy ¶4(a)(iii). 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, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <izea88.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 13, 2021
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