WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Associazione Radio Maria v. Paperboy and Co., Representative Domain Management/Otsuka Hideki, Vivacraft Corporation Case No. D2010-0515 1. The Parties
The Complainant is Associazione Radio Maria of Como, Italy, represented by Perani Pozzi Tavella, Italy.
The Respondent is Paperboy and Co., Representative Domain Management/Otsuka Hideki, Vivacraft Corporation of Fukuoka and Aichi, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with GMO Internet, Inc. d/b/a Discount-D and O. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2010. On April 7, 2010, the Center transmitted by email to GMO Internet, Inc. d/b/a Discount-D and O a request for registrar verification in connection with the disputed domain name. On April 12, 2010, GMO Internet, Inc. d/b/a Discount-D and O transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 21, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on April 23, 2010. The Center verified that the Complaint together with the amendment to 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 May 5, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 25, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 26, 2010.
The Center appointed Douglas Clark as the sole panelist in this matter on June 16, 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. 4. Factual Background
The Complainant is a not for profit, non-governmental organisation that has been broadcasting in Italy since 1987 and began international operations in the 1990s. The Complainant has used and registered numerous trademarks for radio station broadcasting services worldwide. In July 1997 the Complainant registered the trademark RADIO MARIA in Japan.
The disputed domain name was registered on February 23, 2010. 5. Parties' Contentions A. Complainant
(a) The Complainant contends that the domain name is confusingly similar to its trademark RADIOMARIA and its domain name .
(b) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name.
(c) Finally, the Complainant contends that the domain name was registered and is being used in bad faith. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant's mark RADIO MARIA and its domain not only because they sound similar but also because MARIE is the French equivalent of the name MARIA. The Complainant cites several cases regarding the mark RADIO MARIA and domain name , which have been decided through the WIPO Center, to support their argument. These past cases cited by the Complainant have been decided in the Complainant's favour. Rights or Legitimate Interests
The Respondent cannot demonstrate that it has any rights or legitimate interests in the disputed domain name since the Respondent is not affiliated, in any way, with the Complainant. Furthermore, the domain name is not used for any bona fide offerings of goods or services. The “www.” webpage lists several links to rival radio stations and to commercial products, thus causing confusion to the public and damage to the reputation of the Complainant as a not-for-profit religious organisation. Registered and Used in Bad Faith
The Complainant contends that the domain name was registered and is being used in bad faith. The presence of links on the website associated with the domain name to retail websites and rival radio stations suggests the Respondent exploits consumer confusion that arises from the domain name's substantive similarities to the Complainant's trademarks for commercial gain. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings Language of Proceedings
The domain name registration agreement being in Japanese, pursuant to Rules, paragraph 11, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, i.e. the default language of the proceedings shall be Japanese. However, the Complainant submitted a request for English to be the language of the proceedings along with the Complaint.
The Complainant submitted the following arguments for English to be the language of proceedings:
(a) Links to be found on the website associated with the domain name are mainly in Italian, but also in French and English.
(b) Originally, the Complainant wanted to file the Complaint in Italian, since this is their first language.
(c) To continue the proceedings in Italian would be disadvantageous to the Respondent since they have shown no proficiency in the language. English, however, is widely used in Japan.
(d) To continue the proceedings in Japanese would cause not-insignificant translation costs to the Complainant, a not-for-profit organisation.
Given the above arguments, the Complainant argued it would be fairer to both sides if the language of proceedings was English.
Pursuant to paragraph 11 of the Rules, the Panel is granted the power to determine the language of proceedings, having regard to the circumstances of the case. This Panel stated in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191 that:
“[o]ne important consideration of this issue is the fairness to both Parties in their abilities to prepare the necessary documents and protect their own interests”.
The Center has provided both parties with an opportunity to comment on the language of the proceedings by sending both parties a consolidated Language of Proceeding notification; the Complainant and the Respondent were sent copies in both Japanese and English. The Complainant has provided submissions regarding the proper language of proceedings, while the Respondent did not raise any objection or reply thereto. This Panel concluded in the Z, Inc. case cited above:
“a Respondent's failure to respond to these notices should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint [. . .] a clear default by a Respondent who has been informed in their own language of the proceedings, and of the preliminary acceptance of the Complaint in a particular language, would certainly be a strong factor in support of a Panel subsequently determining that there should be consistency between the language of the Complaint as originally accepted and the language of proceedings as ultimately determined by the Panel [. . .] a default by the Respondent after having been notified of the proceedings and being requested to comment or object to the language request should be a strong factor for the Panel to proceed in line with the Center's decision on language.”
The Panel notes that both parties might potentially suffer some disadvantage if the proceedings are conducted in English, but one party could suffer significant disadvantages if the proceedings are conducted in Italian or Japanese. It is in the interest of fairness that the proceedings are not conducted in a language that will disadvantage either party.
Considering that both parties have been given fair opportunities to present their cases and the Respondent has been given an opportunity to object to the proceedings being conducted in English but has not responded, the Panel finds that in the circumstances of this case, paragraph 11 of the Rules is best served by allowing the proceedings to be conducted in English in accordance with the Complainant's request. If the Respondent had filed a Response in Japanese, this would have been accepted. As the only pleading before the Panel is in English, the Panel will issue its decision in English. A. Identical or Confusingly Similar
The Complainant has shown that it is the owner of the RADIO MARIA trademark in Japan and around the world. The disputed domain name is substantially similar both to the trademark RADIO MARIA and to the Complainant's registered domain name . The replacement of the word “maria” with “marie” does not substantially distinguish it from the trademark since not only do they sound similar, but Marie is the French equivalent of the name Maria.
Given these facts, the Panel finds the disputed domain name to be confusingly similar to the Complainant's trademarks. B. Rights or Legitimate Interests
The Complainant has provided sufficient evidence of its exclusive rights in the RADIO MARIA trademark. The Complainant states that it has not authorized the Respondent to use its RADIO MARIA mark, and there is no evidence to the contrary. No effort has been made by the Respondent to use the disputed domain name in connection with a bona fide offering of goods and services. On the contrary, visitors to the site are presented with a collection of links to other websites, some of which offer services that compete with the Complainant.
Consequently, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Given the confusingly similar nature of the Complainant's trademark and the disputed domain name, the website associated with the disputed domain name is likely to attract visitors intending to find information regarding the services offered by the Complainant.
The links to third party websites advertising or selling services similar to those offered under the RADIO MARIA mark makes it obvious that the Respondent's registration of the disputed domain name serves no other purpose than to exploit consumer confusion for commercial gain.
Accordingly, the Panel finds that the Respondent registered, and is using, the disputed domain name in bad faith. 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 disputed domain name be transferred to the Complainant.
Douglas Clark
Sole Panelist
Dated: June 28, 2010
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