DECISION

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.

DECISION

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

---

WorldLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.worldlii.org/int/other/GENDND/2003/652.html