The Complainant is Associazione Radio Maria of Erba Como, Italy, represented by Perani Pozzi Tavella, Italy.
The Respondent is Land Merchandising Corp of Tennessee, United States of America.
The disputed domain name <radiomariafm.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 1, 2010. On February 2, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On February 7, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing 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 February 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 1, 2010.
The Center appointed Joan Clark as the sole panelist in this matter on March 4, 2010. 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.
The Complainant is the owner of the following trademark registrations:
- Community trademark registration no. 003471562 RADIO MARIA, filed on October 29, 2003 and granted on March 7, 2006, in classes 9, 16 and 38;
- International trademark registration no. 600288 RADIO MARIA, granted on May 17, 1993, in class 38, and renewed;
- United States trademark registration no. 1924809 RADIO MARIA, filed on September 13, 1993 and granted on October 3, 1995, in class 38, and renewed.
The Complainant alleges that it is the owner of numerous other registrations for the trademark RADIO MARIA.
The disputed domain name, <radiomariafm.com>, was registered in the name of Land Merchandising Corp. on August 26, 2009 with an expiry date of August 26, 2010.
The Complainant declares that it was created as a Catholic parish radio in 1983, and that in 1987 the Complainant was formed by laymen and priests hoping to give Radio Maria independence from the parish and a larger rôle in its commitment of evangelization.
The Complainant further declares that the program schedule had been completely redesigned and all of Italy's regions were covered with the signal, making Radio Maria a national broadcasting station and, further, that in the 1990's Radio Maria began expanding to the rest of the world.
The Complainant asserts that, in 1998, The World Family of Radio Maria was established, and that the Association now operates with several stations placed throughout the world, in over 45 countries and in more than a dozen languages, so that its signal now covers nearly 300 million people all over the world. The Complainant states that Radio Maria broadcasts also online through its website “www.radiomaria.org”.
The Complainant states that, due to its spiritual nature, Radio Maria excludes all types of advertising, surviving on the sole free contributions of its listeners, and that it never relies on sponsorships.
The Complainant has produced a list of a large number of trademark registrations throughout the world of the trademark RADIO MARIA and has provided particulars of the Community trademark registration for the trademark RADIO MARIA filed on October 29, 2003 and granted on March 7, 2006, the International trademark registration for RADIO MARIA granted on May 17, 1993, and renewed, and the United States trademark registration for RADIO MARIA filed on September 13, 1993 and granted on October 3, 1995, and renewed.
The Complainant states that it has been recently informed of the registration of the disputed domain name which was created on August 26, 2009 and that the domain name at issue is linked to a page containing several links to other websites, sponsoring services of competitor radio stations which have nothing to do with the Complainant.
The Complainant submits that the disputed domain name is confusingly similar to the Complainant's trademarks and that it exactly reproduces the distinctive term “radio maria” with the mere addition of the letters “fm” at the end of the trademark, which is a negligible difference between the Complainant's trademarks and the disputed domain name and furthermore, that the letters “fm” represent the acronym “frequency modulation”, a system of transmission based on the radio frequency signal which is a mere description referring to the Complainant's broadcasting activity. The Complainant submits that the inclusion of these letters in the domain name <radiomariafm.com> increases the risk of confusion for the consumers, who could believe that there is a connection with the Complainant.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name, that the said domain name does not correspond to a trademark registered in the name of the Respondent, that the disputed domain name does not correspond to the Respondent's name and that the Respondent is not commonly known as “Radiomariafm”
The Complainant adds that it does not find any fair or noncommercial uses of the domain name in dispute, that it is not used for bona fide offerings and that the use of the disputed domain name is evidently unfair, since the Respondent's website contains links to radio services and the Complainant is a Catholic radio station.
The Complainant asserts that the disputed domain name was registered and is being used in bad faith. The Complainant submits that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website, creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website.
The Complainant adds that its trademark RADIO MARIA is well-known around the world and that it is very hard to believe that the Respondent did not know the Complainant's trademark when it registered the domain name in dispute. The Complainant submits that by registering and using the disputed domain name the Respondent was certainly planning to exploit the reputation of the trademark RADIO MARIA for attracting Internet users to a website which is not related to the Complainant.
The Complainant notes the presence of links on the Respondent's website to the websites of the Complainant's competitors, and claims that the Respondent's gain is evident since it is obvious that the Respondent's sponsoring activity is being remunerated.
The Complainant requests the Panel to issue a decision that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy states that, in order to be successful with respect to a disputed domain name, the Complainant has the burden of proving that all three elements are present in the Complaint, namely:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances which, for the purpose of paragraph 4(a)(iii) above, shall be evidence of registration and use of a domain name in bad faith but are not limitative.
Paragraph 4(c) of the Policy sets out three illustrative circumstances each of which, if proven, shall demonstrate the Respondent's rights or legitimate interests in the disputed domain name for purposes of paragraph 4(a)(ii) above.
The Panel finds the disputed domain name to be confusingly similar to the Complainant's trademark RADIO MARIA, the only difference being the addition of the letters “fm” and the suffix “.com”. The first, principal and prominent part of the disputed domain name is made up entirely of the Complainant's trademark. The letters “fm”, far from distinguishing the domain name from the Complainant and its trademark, add to the confusion by referencing the broadcasting signal used by the Complainant, and the addition of the gTLD suffix “.com” is irrelevant with respect to the issue of identity with or confusing similarity to the Complainant's trademark.
The Panel further finds that the Complainant has rights in the trademark RADIO MARIA, as established by the evidence adduced in respect of three trademark registrations, particulars of which are set forth in the Complaint and above.
The Complainant has established the first element required for the Complaint to succeed.
The Respondent has not provided a Response and has not submitted evidence to support a finding that it has rights or legitimate interests in the disputed domain name.
The Complainant has satisfied its initial burden of proof, indicating there is no evidence that the Respondent has been commonly known by the disputed domain name, or had a trademark represented by the disputed domain name, or had been using the domain name for the bona fide offering of goods or services. The referral, on the web site under the disputed domain name, of users to other websites, including to websites of the Complainant's competitors, does not constitute a bona fide use of the domain name. In the absence of any rebuttal from the Respondent, the Panel accepts the Complainant's assertion that the Respondent has no rights or legitimate interests in the domain name, and the second element required for the Complaint to succeed has been established.
The evidence before the Panel is that the trademark RADIO MARIA has been widely used throughout the world and is well-known. The Panel considers it highly likely that the Respondent was aware of the existence of the Complainant's trademark RADIO MARIA when it chose a domain name which is confusingly similar to the trademark, and considers this was done to attract Internet users to its website based on a confusion between the disputed domain name and the Complainant's trademark. The webpage of the disputed domain name, a copy of which has been produced in evidence, shows links to the websites of various services and businesses, some of which are unquestionably of a commercial nature emanating from the Complainant's competitors. The Respondent does not offer its own goods or services on its website, and it is fair to assume that the Respondent, under its confusing domain name, provided links to these other websites for a remuneration. Such other websites, according to the Complainant, are not related to it and, in fact, the Complainant has made the point that, due to its spiritual nature, it excludes all types of advertising.
In view of the evidence and arguments put forth by the Complainant, and in the absence of any rebuttal by the Respondent, the Panel finds that the disputed domain name was registered and is being used in bad faith.
For the above reasons, the Panel finds that the third element required for the Complaint to succeed has been established.
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, <radiomariafm.com>, be transferred to the Complainant.
Dated: March 15, 2010