WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Associazione Radio Maria v. Masatoshi Yamamoto, Gran Net Co., Ltd
Case No. D2015-0386
1. The Parties
The Complainant is Associazione Radio Maria of Erba (Como), Italy, represented by Perani Pozzi Associati - Studio Legale, Italy.
The Respondent is Masatoshi Yamamoto, Gran Net Co.,Ltd of Kobe-shi, Hyogo, Japan.
2. The Domain Name and Registrar
The disputed domain name <radiomariahispana.org> is registered with GMO Internet, Inc. d/b/a Discount-Domain.com and Onamae.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 5, 2015. On March 5, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 6, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On March 9, 2015, the Center transmitted an email to the parties in English and Japanese regarding the language of the proceeding. On March 10, 2015, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not submit its comments within the specified due date.
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 in English and Japanese, and the proceedings commenced on March 16, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 7, 2015.
The Center appointed Douglas Clark as the sole panelist in this matter on April 17, 2015. 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 a Christian radio service broadcasting in over 50 countries in the world. The Complainant is the registered proprietor of the trademark RADIO MARIA in various countries and is the registrant of numerous domain names incorporating the trademark RADIO MARIA including <radiomaria.com> and <radiomariahispana.com>.
The disputed domain name <radiomariahispana.org> was registered on November 16, 2014. The website to which the disputed domain name resolves is a page featuring articles in Japanese on how to enter the prostitution industry in Japan.
5. Parties' Contentions
The Complainant argues that the disputed domain name <radiomariahispana.org> is made entirely up of the registered trademark RADIO MARIA and the word "Hispana" to which the generic Top-Level Domain (gTLD) ".org" has been added. It is therefore confusingly similar to the Complainant's registered trademark RADIO MARIA. It is also almost identical to the domain name <radiomariahispana.com> owned by the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant submits that the Respondent must have known of the Complainant particularly as its registration is almost identical to <radiomariahispana.com>. Further, the use the Respondent has made on its website providing salacious content shows the Respondent's bad faith. The false association of the Complainant with pornographic content causes clear harm to the Complainant and tarnishes its brand.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of Proceedings
The language of the Registration Agreement is in Japanese. Paragraph 11(a) of the Rules provides that:
"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding."
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Japanese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The Complainant requested the language of the proceeding to be English on grounds that the Complainant was Italian and the Respondent Japanese, so English was an appropriately neutral language and that the spirit of the Policy was to consider both parties' level of comfort. The Complainant requested the proceedings proceed in accordance with the Center's determination.
The Respondent did not respond to this request.
The final determination of the language of the proceeding lies with this Panel.
The Respondent has not responded to the Center's preliminary determination (which was sent in Japanese and English). This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint."
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2 Substantive Decision
A. Identical or Confusingly Similar
The disputed domain name <radiomariahispana.org> is made up of the registered trademark RADIO MARIA, the word "Hispana" and the gTLD ".org". The disputed domain name is confusingly similar to the registered trademark RADIO MARIA. It is also, other than the gTLD, identical to the Complainant's domain name <radiomariahispana.com>. The first part of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") provides:
"While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP."
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. The use of the disputed domain name to provide information about prostitution cannot be considered to be in good faith.
The second part of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name <radiomariahispana.org> was registered in bad faith and is being used in bad faith. The use of the website under the disputed domain name to provide information on prostitution clearly tarnishes the RADIO MARIA trademark which has been found in other cases to be registration and use in bad faith. (See WIPO Overview 2.0, paragraph 3.11).
The third part of paragraph 4(a) of the Policy is therefore satisfied.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name<radiomariahispana.org> be transferred to the Complainant.
Date: April 26, 2015