Talk Radio Network, Inc. v. Thomas
Leavitt a/k/a Leavitt Enterprises
Claim Number: FA0304000155182
PARTIES
Complainant is Talk Radio Network, Inc., Central
Point, OR (“Complainant”) represented by William
K. Kane of Kane Laduzinsky & Mendoza, Ltd.
Respondent is Thomas Leavitt a/k/a Leavitt Enterprises, Santa Cruz, CA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name
at issue is <savagestupidity.com>
registered with Gandi.
PANEL
The undersigned
certifies that he has acted independently and impartially and to the best of
his knowledge has no known conflict in serving as Panelist in this proceeding.
Panelist is
Judge Karl V. Fink (Ret.).
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on April 22, 2003; the Forum received a hard copy of the
Complaint on April 23, 2003.
On May 6, 2003, Gandi
confirmed by e-mail to the Forum that the domain name <savagestupidity.com> is registered with Gandi and that the
Respondent is the current registrant of the name. Gandi has verified that
Respondent is bound by the Gandi registration agreement and has thereby agreed
to resolve domain-name disputes brought by third parties in accordance with
ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 6, 2003,
a Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of May 26, 2003 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@savagestupidity.com by e-mail.
A timely
Response was received and determined to be complete on May 26, 2003.
A timely
Additional Submission was received from Complainant on June 2, 2003.
All submissions
by the parties were considered by the Panel.
On June 9, 2003, pursuant to Complainant’s request to have the dispute
decided by a single-member Panel, the Forum appointed as Panelist Judge Karl
V. Fink (Ret.).
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is
the owner by contract of the Michael Savage trademark, which was filed with the
USPTO on March 20, 2002
Respondent’s <savagestupidity.com> domain name
is confusingly similar to Complainant’s registered Michael Savage trademark.
The Respondent’s
domain name is also confusingly similar to the Complainant’s
<themichaelsavageshow.com>, <thesavageshow.com<,
<michaelsavage.info>, and <michaelsavage.biz> domain names.
The Internet is
a forum which reaches a worldwide audience, many of whom do not speak the
English language; for those users, the word “stupidity” would not sufficiently
eliminate any confusion between Complainant’s mark and the disputed domain
name.
A user searching
for Michael Savage on the <msn.com> Internet search engine will find that
the web address for savagestupidity is one of the search results.
The home page of
<savagestupidity.com> proudly
states:
Latest update: SavageStupidity.Com now prominently
ranked on Google! Type In “Michael
Savage” or “savage nation” or “Michael Savage” or “the
savage nation” and we’re on the first page of results! We are generating hundred of visitors a
day as a result.
Respondent does
not have any rights or legitimate interests in the <savagestupidity.com> domain name.
Complainant has
never authorized or licensed Respondent to use its corporate or trade name in
any manner at all.
Respondent does
not use the domain name or a name corresponding to the domain name in
connection with a bona fide offering of goods or services.
Respondent is
not commonly known by the domain name.
Complainant’s
prior rights in the trademarks and domain names precede Respondent’s
registration of the name <savagestupidity.com>,
which was registered on April 29, 2002, over two months after the Michael
Savage trademark was filed with the USPTO.
Respondent’s
only intent is to tarnish the Michael Savage mark in some fashion and to
disrupt the business of Complainant.
Respondent registered and used the domain name in bad faith. Respondent has registered the domain name
primarily for the purpose of disrupting the Complainant’s business.
Respondent is
also using the domain name to intentionally attract, for commercial gain,
Internet users to Respondent’s website or other on-line location, by creating a
likelihood of confusion with Complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of Respondent’s web site or location or of a
product or service on Respondent’s web site or location.
B. Respondent
“Savage” is a
completely generic English word, meaning “Lacking polish or manners; rude.”
Complainant’s
claims that the association of “savage” with “stupidity” is “confusingly
similar” to “Michael” and “savage” (or any other domain name held by them) is
absurd.
The
“savagestupidity.com” domain name is also distinctly different from every
domain the complainant lists.
The use of the
term “Savage” by Michael Weiner is clearly a reference to its dictionary
meaning, as the tone of his show makes clear.
Merely because Weiner and Talk Radio Network, Inc. (TRN) have decided to
utilize the generic term to market Michael Weiner’s commentary, does not give
him a proprietary right to the use of this term in that sense.
The Complainant
is attempting to claim the protection of trademark status for an individual
component of a larger trademarked term, an assertion which is invalid on its
face.
Respondent has
made a good faith effort to communicate the site’s nature and intent in every
way humanly possible to as many visitors as possible. The Complainant’s claim that the domain name or the content of
the site is being used to intentionally attract people by creating a likelihood
of confusion has no merit.
C. Additional
Submissions
Complainant.
Respondent’s use
of the savagestupidity.com is confusingly similar to Complainant’s mark. The addition of the word “stupidity” does
not detract from the presence of complainant’s mark.
Respondent’s use
of Complainant’s mark in the disputed domain name is clearly intended to
confuse the public by attracting web users to his site who are interested in
Michael Savage through his celebrity.
Respondent has
failed to rebut any allegations in the Complaint that Respondent has no rights
or legitimate interests in the disputed domain name.
Respondent has
failed to show the disputed domain name was registered in good faith. Respondent would not attract the same amount
of visitors to his website if Complainant’s mark was not included in the
domain.
FINDINGS
For
the reason set forth below, the Panel denies the request to transfer the domain
name.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution
Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis
of the statements and documents submitted in accordance with the Policy, these
Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a)
of the Policy requires that the Complainant must prove each of the following
three elements to obtain an order that a domain name should be cancelled or
transferred:
1. the domain name registered by the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainant has rights
2. the Respondent has no rights or
legitimate interests in respect of the domain name; and
3. the domain name has been registered and
is being used in bad faith.
Identical and/or Confusingly Similar
The Panel finds
that the <savagestupidity.com> domain name is not confusingly similar to
Complainant’s mark because the disputed domain name includes the term
“stupidity” after Complainant’s mark. Internet users would not confuse
Respondent’s domain name with Complainant’s mark because the addition of the
term “stupidity” indicates that the disputed domain name has no affiliation
with Complainant’s mark. See Robo Enter., Inc. v. Tobiason, FA 95857 (Nat. Arb. Forum Dec. 24, 2000)
(noting that using a negative domain name for the purposes of criticism, such
as <walmartcanadasucks.com>, does not create confusion with the service
mark of Complainant); see also Lockheed Martin Corp. v. Parisi,
D2000-1015 (WIPO Jan. 26, 2001) (finding that “common sense and a reading of
the plain language of the Policy support the view that a domain name combining
a trademark with the word “sucks” or other such language clearly indicates that
the domain name is not affiliated with the trademark owner and therefore
<lockheedmartinsucks.com> and <lockheedsucks.com> cannot be
considered confusingly similar to LOCKHEED MARTIN).
The Panel finds that Respondent’s domain name is not confusingly similar
to Complainant’s mark because the <savagestupidity.com> domain name is
comprised of generic terms “savage” and “stupidity.” See
Energy Source Inc. v. Your Energy Source, FA 96364 (Nat. Arb. Forum Feb. 19, 2001) (finding that
Respondent has rights and legitimate interests in the domain name where
“Respondent has persuasively shown that the domain name is comprised of generic
and/or descriptive terms, and, in any event, is not exclusively associated with
Complainant’s business”); see also Zero Int'l Holding v. Beyonet Servs., D2000-0161 (WIPO May 12, 2000) (stating that
"[c]ommon words and descriptive terms are legitimately subject to
registration as domain names on a 'first-come, first-served' basis").
Complainant
has not proven this element.
The Panel did
not decide the “rights or legitimate interests,” and “registration and use in
bad faith” elements since, under the Policy, the Complainant fails unless all
three elements necessary to have a domain name registration cancelled or
transferred are established.
Since
Complainant has not proven the elements required under ICANN Policy, the relief
requested is DENIED.
Judge Karl V.
Fink (Ret.), Panelist
Dated: June 24, 2003
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