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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Associazione Radio Maria v. Texas International Property Associates

Case No. D2009-1359

1. The Parties

The Complainant is Associazione Radio Maria of Erba, Italy, represented by Studio Legale Perani, Italy.

The Respondent is Texas International Property Associates, of Texas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <radiomarija.com>is registered with Compana LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 13, 2009. On October 14, 2009, the Center transmitted a request by email to Compana LLC for registrar verification in connection with the disputed domain name. On October 15, 2009, Compana LLC transmitted to the Center by email, its verification response confirming that the Respondent is listed as the registrant and also provided the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 11, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on November 12, 2009.

The Center appointed Ada L. Redondo Aguilera as the sole panelist in this matter on November 24, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is Associazione Radio Maria, a moral association constituted under the Italian laws.

From 1983 to the present, Radio Maria has developed from a small Parish Radio Station to a world wide Radio Station with presence in over 45 countries.

The Complainant has registered an international trademark RADIO MARIA as trademark, this fact was certified with the following copy of titles:

- Community trademark registration nВє 003471562, RADIO MARIA granted on March 7, 2006 in classes 9, 16 and 38.

- International Trademark registration nВє 600288, RADIO MARIA granted on May 17, 1993, in class 38 and renewed.

- United States trademark registration nВє 1924809, RADIO MARIA granted on October 3, 1995, in class 38 and renewed.

- Slovenian trademark registration nВє 9370892, RADIO MARIJA granted on October 3, 1997 and renewed.

- Croatian trademark registration nВє Z933098, RADIO MARIJA granted on September 30, 1993 and renewed.

Radio Maria also broadcasts online though the web site "www.radiomaria.org"

Among other domain names, registered as generic top level domains or country code top level domains. The Complainant also has the following web sites:

"www.radiomaria.org"

"www.radiomarija.hr"

According to the Internic and the Budgetnames.Com databases, the Respondent is Texas International Property Associates.

Taking into account that no response and evidence has been received, by Respondent, these factual assertions are undisputed and accepted as true in this Procedure.

5. Parties` Contentions

A. Complainant

The Complainant based their case in the following grounds:

The domain name is confusingly similar to the trademarks in which the Complainant has rights:

Associaciazzione Radio Maria is the owner of RADIO MARIA and RADIO MARIJA trademarks according the following information:

- Community trademark registration nВє 003471562, RADIO MARIA, granted on March 7, 2006 in classes 9, 16 and 38.

- International Trademark registration nВє 600288, RADIO MARIA, granted on May 17, 1993, in class 38 and renewed.

- United States trademark registration nВє 1924809, RADIO MARIA, granted on October 3, 1995, in class 38 and renewed.

- Slovenian trademark registration nВє 9370892, RADIO MARIJA, granted on October 3, 1997 and renewed.

- Croatian trademark registration nВє Z933098, RADIO MARIJA, granted on September 30, 1993 and renewed.

The Complainant encloses to the complaint, a copy of the certification of the titles of the above-mentioned trademarks.

In addition to the aforementioned trademark registrations, the Complainant also established that among other Domain Names, registered as Generic Top Level Domain or Country Code Top Level Domains, the Complainant has also broadcast and uses the following web sites:

"www.radiomaria.org"

"www.radiomarija.hr"

The Complainant asserts that "it is more than obvious that the domain name at issue is confusingly similar to the Complainant`s trademarks. In fact, the domain name <radiomarija> exactly reproduces the distinctive term "Radio Maria" with the mere addition of the letter "J" in the middle of the trademark; it is a negligible difference between the trademark and the disputed domain name that is not enough to change the impression of the domain name being confusingly similar to the Complainant`s trademark.

The Complainant argues that they are also the owners of the trademark RADIO MARIJA registered in Slovenia and Croatia. The Complainant explained that the reason why they made the registration of MARIJA instead of MARIA is due to the fact that in some countries exists the double spelling of the same name.

In the light of the above, the Complainant claims that it is unquestionable that the contested domain name <radiomarija.com> exactly reproduces the mentioned trademark.

Additionally, in this case it has to be underlined that the Complainant is also the owner of the domain name <radiomarija.hr> connected to the web site of Radio Maria Croatia, domain name that is exactly the same as the disputed domain name, except use of the ccTLD (.hr) instead of the generic top level domain (.com).

In conclusion, the Complainant argues that the disputed domain name <radiomarija.com> is identical to the trademarks "RADIO MARIA" and "RADIO MARIJA" owned by the Complainant.

The Complainant has argue that the Respondent has no rights or legitimate interest in respect to the domain name (Policy, paragraph 4 (a)(ii) Rules, paragraph 3 (b)(ix)(2)) because "Texas International Property Associates" is not the owner of the trademark or trade name such as RADIOMARIJA, and is not commonly known as "Radiomarija".

Additionally, the Complainant has not found any fair use or non-commercial uses of the disputed domain name, which could be claimed by the Respondent use of the domain name in good faith or bona fide.

And finally, the Complainant is convinced that the disputed domain name was registered and is being use in bad faith according to the Policy, paragraph 4(a) 4(b) and Rules, paragraph (b)(ix)(3).

B. Respondent

The Respondent did not reply to the Complainant`s contentions.

6. Discussion and Findings

As a preliminary matter though the Respondent has not submitted a response, the essential elements of the claim will be reviewed by this Panel to confirm they have been meet, as cited in Associazione Radio Maria v. Hostmaster Hostmaster, Domain Park Limited, WIPO Case No. D2009-0263 and RRI Financial Inc v. Ray Chen, WIPO Case No. D2001-1242, have been based on the Rules paragraph 15(a).

Rules paragraph 15(a) "Where the respondent does not respond to the complaint, the Panel must decide on the complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any principles of law the panel deems applicable".

In this case, the facts and evidence presented by the Complainant are undisputed and accepted as true.

In order to prevail, the Complainant must prove the following: (Policy, paragraph 4 (a)):

(i) The domain name is identical or confusingly similar to a trademark of service mark in which the Complainant has rights; and

(ii) The respondent has no rights or legitimate interests in respect the domain name; and

(iii) The domain name has been registered and is being use in bad faith.

A. Identical or Confusingly Similar

The Complainant has presented enough evidence with the above-mentioned copies of the titles, that it`s the owner of the trademarks: RADIO MARIA and RADIO MARIJA.

Also, the Complainant asserts that the reason why they registered (as trademark and domain names) the name "Marija" instead of "Maria" is due to the fact that in some countries there exists the double spelling of the same name. The Complainant proves this fact with the copy of the certification of the titles of the Slovenian trademark registration Number 9370892 RADIO MARIJA granted on October 3, 1997 and renewed. Croatian trademark registration number Z933098 RADIO MARIJA granted on September 30, 1993 and renewed.

In light of the above, it is unquestionable that the contested domain name <radiomarija.com> exactly reproduces the above-mentioned trademark, which legally belongs to the Complainant. Therefore this Panel finds that the domain name <radiomarija.com> is exact to the trademark RADIO MARIJA, because it is the mere incorporation of the entirely trademark RADIO MARIJA and is relatively unquestionable that the disputed domain name is similar to the trademark RADIO MARIA, because it is spelled with a J instead of an I. Therefore, the Complainant has met the requirement under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy the following circumstances can demonstrate rights or legitimate interest in the Domain Name by the Respondent:

(i) before any notice was given to the respondent of the dispute, the respondent used, or demonstrably made preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights, or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark of the complainant.

The Respondent has not provided any evidence of the circumstances mentioned above that could be the basis of use by the Panel finding Respondent`s rights or legitimate interest in the disputed domain name. The record is to the contrary, the Complainant based his complaint on the Policy paragraph 4(a)(ii) Rules (b)(ix)(2) and argues that the Respondent has no rights or legitimate interests in the disputed domain name because e.g.: the disputed domain name does not correspond to a trademark registered in the name of "Texas International Property Associates". The Complainant submits no evidence supporting this allegation.

The Complainant alleges that the disputed domain name does not correspond to the Respondent`s name and also that it has not been commonly known by the names "Radio Maria" or "Radio Marija" or by the disputed domain names itself. On this allegation, the evidence presented by the Complainant is the domain registration information provided by the registrar, which lists only the name "Texas International Property Associates" in which it cannot be found "Radio Marija" or "Radio Maria".

The Complainant alleges that there is no fair use or non-commercial use of the disputed domain name and presented as evidence of this fact the printouts of the web page at the disputed domain name. From a review of the printouts of the web page at the disputed domain name provided by the Complainant and confirmed by the review of the webpage at <radiomarija.com> made by the Panel, the use of the disputed domain name is as a search web page that contains links to other radio services, indicates the use of the domain name in connection with a commercial gain. Similar opinions of other panels can be used as examples of this kind of use of a domain name which is commercial, See Schering-Plough Corporation and Schering Corporation v. Registrant [240614]: Forum LLC c/o Moniker Privacy Services, WIPO Case No. D2006-1068, see also Associazione Radio Maria v. Hostmaster Hostmaster, Domain Park Limited, WIPO Case No. D2009-0263.

Therefore, the evidence available indicates that it can be concluded that the disputed domain name is being used for commercial gain and not for a non-commercial or fair use.

The Complainant has presented enough evidence to prove that the Respondent has no rights or legitimate interests in the disputed domain name. Therefore, the Complainant has satisfied its burden under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

According to the Policy, paragraph 4 (b), for the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

"(i) circumstances indicating that 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 your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location."

The Complainant asserts that the domain name in dispute was registered and is being used in bad faith, due to the following:

The Respondent has intentionally attempted to attract, for commercial gain, Internet users to a web site, by creating likelihood of confusion with the Complainants trademark as to the source, sponsorship, affiliation or endorsement of its web site. The Complainant has provided printouts of the web site <radiomarija.com> which provides links to other radio services.

The Panel finds that the only evidence of this kind of use presented by the Complainant, are in fact the prints outs and the recent visits made by the Panel of the web site "radiomarija.com" that indicates that the web site can create a kind of likelihood of confusion with the Complainants trademark as to the source, sponsorship, affiliation or endorsement of its web site and the other links that are in it.

The Complainant also alleges that the presence of links to the web sites of the Complainant`s competitors renders the Respondent`s conduct even worse.

The presence of a search page or parking page unrelated to the trademark value of the domain name, alone, does not support a finding of bad faith by itself. Finm eccanica S.p.A. v. Moniker Privacy Services / Guillermo Lozada, WIPO Case No. D2008-0884. The Complainant has provided printouts of web pages of <radiomarija.com> that has links to competing radio services. The Respondent`s web site redirects Internet users to services that compete with the Complainant services, which in this case is important. Prior UDRP panels have relied on a parking page that redirects the user to a web site advertising goods or services competitive with the Complainant as evidence of bad faith in the context of a finding under paragraph 4(b)(iv) of the Policy. See Microsoft Corporation v. Step Web, WIPO Case No. D2000-1500; Cloer Elektrogeräte GmbH v. Motohisa Ohno, WIPO Case No. D2006-0026; and Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912.

In one of the three recent disputes involving the same Complainant, a UDRP panel held that "registration and linking of its domain name <radiomariatanzania.com> to a pay-per-click search page in the circumstances is in bad faith." Associazione Radio Maria v. Private Whois Escrow Domains Private Limited/ Comdot Internet Services Private Limited, WIPO Case No. D2008-0477.

In this case, the evidence also indicates that the disputed domain name has been registered and used in bad faith, also see Associazione Radio Maria v. Hostmaster Hostmaster, Domain Park Limited, WIPO Case No. D2009-0263 and Associazione Radio Maria v. Hostmaster Hostmaster, Domain Park Limited, WIPO Case No. Case No. D2009-0263

A number of prior UDRP panel decisions support an indication of bad faith registration and use when the domain name incorporates a trademark that is widely known and in which the respondent does not have rights or legitimate interests. See Sally Holdings, Inc. v. W. Williams, WIPO Case No. D2005-1103; The American Kennel Club Inc. v. Aaron Clayton, WIPO Case No. D2007-0543. In the present case, the trademark RADIO MARIA and RADIO MARIJA are widely known. This case is another example in which Respondent registered an Internet domain name that entirely incorporates a widely known trademark and also in which the same Respondent has not rights or legitimate interests

The Respondent has not presented any evidence or argument that could serve him as a defense of his good faith in the registration and use of the disputed domain name. Therefore this Panel, basing its finding on the Complaint, the documents presented, all of the evidence and the reasonable inferences that may be drawn from them that, the Complainant has been able to satisfy its burden under paragraph 4(a)(iii) of the Policy.

For all the foregoing reasons the Panel finds that is sufficient to support an inference of bad faith registration and use of domain name by the Respondent, under the Policy and the Rules.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <radiomarija.com> be transferred to the Complainant.


Ada L. Redondo Aguilera
Sole Panelist

Dated: December 8, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-1359.html

 

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