The Complainant is Associazione Radio Maria of Erba (Como), Italy, represented by Perani Pozzi Tavella, Italy.
The Respondent is Ho Nim of Shanghay, the People's Republic of China.
The disputed domain name <radiomarimexico.com> is registered with Above.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 19, 2010. On April 20, 2010, the Center transmitted by email to Above.com a request for registrar verification in connection with the domain name at issue. On April 22, 2010, Above.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 April 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 14, 2010.
The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on May 21, 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, Associazione Radio Maria, is an Italian moral association, formed in 1987 to expand the evangelical scale of the Catholic parish radio station “Radio Maria”, originally set up in 1983. The Complainant is affiliated with several associations all over the world, including Mexico, where the Complainant is present with Radio Maria A.C. and broadcasts through its website “www.radiomariamexico.com”
The Complainant secured and maintains several trademark registrations, including, in particular:
- 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, designating China, granted on May 17, 1993, in class 38, and renewed;
- Mexican trademark registration no. 498282 RADIO MARIA, filed on December 16, 1994 and granted on July 24, 1995, in class 38.
The Respondent registered the disputed domain <radiomarimexico.com> with the registrar Above.com on November 2, 2009. Under said domain name there is a web page that features links to a number of other websites featuring various services of a non-religious nature, including travels, cars and radio stations.
The disputed domain name is identical or confusingly similar to the Complainant's registered trademark RADIO MARIA and to the domain name <radiomariamexico.com>. In effect, the disputed domain name <radiomarimexico.com> contains in its entirety the Complainant's trademark with the exception of the omission of the sole “a”, configuring in a typical case of typo-squatting practice.
The rights regarding the trademark RADIO MARIA have been acknowledged by decisions of WIPO UDRP Panels, namely, WIPO Case No.s. Associazione Radio Maria v. Mr. Hong Hee Dong, WIPO Case No. D2005-0062; Associazione Radio Maria v. Satnet S.A., WIPO Case No. D2006-0376; Associazione Radio Maria v. Private Whois Escrow Domains Private Limited/ Comdot Internet Services Private Limited, WIPO Case No. D2008-0477; Associazione Radio Maria v. Hostmaster Hostmaster, Domain Park Limited, WIPO Case No. D2009-0263; Associazione Radio Maria v. Transure Enterprise Ltd, Host Master, WIPO Case No. D2009-1422; Associazione Radio Maria v. Texas International Property Associates, WIPO Case No. D2009-1359; Associazione Radio Maria v. Lu Lan, WIPO Case No. D2010-0103 and Associazione Radio Maria v. Land Merchandising Corp, WIPO Case No. D2010-0140.
The Complainant argues that the Respondent has no rights in the disputed domain name, since the Respondent is not a licensee of the Complainant, nor is authorized to use the Complainant's trademark. Moreover, the Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services, is not commonly known by the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name. In fact, the Complainant alleges that the Respondent is deceptively misdirecting visitors from the Complainant's website, per a typo-squatting practice, linking to commercial products and even to other radio competitors, which ingenerates confusion for the public and damage for the Complainant.
In addition, by means of the disputed domain name, the Respondent appears to have the intent to obtain financial gain through the advertising of competing businesses, such as radio antennas and FM transmitters. The Complainant holds that Internet users might suppose, due to the similarity of the domain name <radiomarimexico.com> and the Complainant's trademark, that the Complainant is sponsored by the entities whose links appear on the Respondent's website, which is incompatible to its mission and may discourage users from making donations to the Complainant.
The Complainant further argues that the Respondent clearly uses the disputed domain name <radiomarimexico.com> in bad faith, since the Respondent could not fail to have acknowledge of the trademark RADIO MARIA when the disputed domain name was registered. In fact, the Respondent certainly planned to exploit the reputation of the Complainant's trademark in order to attract Internet users to a website not related to the Complainant.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 4(a) of the Policy the Complainant must prove each of the following:
(i) That the domain name registered by the Respondent is identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and
(ii) hat the Respondent has no rights or no legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and is being used in bad faith.
The Complainant owns a large number of registered trademarks for the expression RADIO MARIA, among which the Panel cites Mexican trademark registration no. 498282 and International trademark registration no. 600288, which pre-date the Respondent's registration of the domain name. Furthermore, the Complainant also broadcasts in Mexico under the name Radio Maria, and even streams through the website connected to the domain name <radiomariamexico.com>. This domain name differs from the disputed domain name <radiomarimexico.com> only by the omission of the letter “a”. This close misspelling appears to be a classic example of typo-squatting. There is no doubt that the mere exclusion of a sole letter between the word elements is not sufficient to avoid confusion between the domain name and the Complainant's trademark. It does not bring enough distinctiveness to the domain name. In fact, the referred omission in the domain name keeps the mark with the same general appearance and sound, remaining confusingly similar to the registered mark.
In this context, the Panel finds that the domain name < radiomarimexico.com> meets the Policy requirement and that it is confusingly similar to the Complainant's trademark RADIO MARIA , within the meaning of the Paragraph 4(a)(i) of the Policy.
The disputed domain name was registered on November 02, 2009, that is, several years after the Complainant's registrations for the trademark “RADIO MARIA”. Therefore, considering the notoriety of the Complainant's trademark, the Respondent must have been aware of the same at the time of registration and also of the prior use of the domain name <radiomariamexico.com> by the Complainant.
In addition, as per an analysis of the Respondent's website, one may observe that the Respondent does not run any business activity in connection with the disputed domain name. By the contrary, in such website, the Respondent only posts a list of commercial links unrelated to the trademark RADIO MARIA. Therefore, the domain name <radiomarimexico> is not rightfully used by the Respondent in connection with a bona fide offering of goods and services.
Furthermore, the Complainant has no relationship whatsoever with the Respondent and has never authorized the Respondent to use the trademark RADIO MARIA or to apply to use any domain name incorporating the mentioned trademark.
Moreover, the Complainant has established a prima facie case that the Respondent does not have legitimate interests in the disputed domain name. Since the Respondent has not replied to the Complaint and, thus, has not presented any other evidence or elements to justify any rights or legitimate interest in connection with the disputed domain name, the Panel has found no indication that any of the circumstances described in Paragraph 4(c)(i)-(iii) of the Policy could apply to the present matter.
Therefore, given the circumstances described above, the Panel finds that Respondent has no right or legitimate interest in respect to the domain name (Policy, Paragraph 4(a)(ii)).
Firstly, the Panel believes that the present case configures into a typical example of typo-squatting, by the use of an incorrect spelling of the trademark RADIO MARIA. In this sense, it is important to highlight that the practice of typo-squatting, per se, has been found to be evidence of bad faith registration of a domain name, under paragraph 4(a)(iii) of the Policy. The Panel refers, in that aspect, to name only a few examples, to Sharman License Holdings, Limited v. IcedIt.com WIPO Case No. D2004-0713; ESPN, Inc .v. XC2, WIPO Case No. D2005-0444; Volvo Trademark Holding AB v. Unasi, Inc. WIPO Case No. D2005-0556; and SurePayroll, Inc. v. Web Advertising, Corp. WIPO Case No. D2007-0470; where typo-squatting was found to be presumptive of bad faith.
Furthermore, the Panel finds that the Respondent, by using the domain name <radiomarimexico.com> for advertising several services and products, including radio stations, has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website, within the meaning of paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel determines that the disputed domain name was registered and is being used in bad faith.
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 <radiomarimexico.com> be transferred to the Complainant.
Gabriel F. Leonardos
Dated: June 4, 2010