DECISION

Talk Radio Network, Inc. v. Todd Fotuar d/b/a Coalition for Human Decency, Inc.

Claim Number: FA0304000155181

PARTIES

Complainant is Talk Radio Network, Inc., Central Point, OR (“Complainant”) represented by William K. Kane of Kane Laduzinsky & Mendoza, Ltd. Respondent is Todd Fotuar d/b/a Coalition for Human Decency, Inc., Phoenix, AZ (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <michaelsavagesucks.com> registered with Domain People Inc.

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 April 30, 2003, Domain People Inc. confirmed by e-mail to the Forum that the domain name <michaelsavagesucks.com> is registered with Domain People Inc. and that the Respondent is the current registrant of the name. Domain People Inc. has verified that Respondent is bound by the Domain People Inc. 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 5, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 27, 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@michaelsavagesucks.com by e-mail.

A timely Response was received and determined to be complete on May 23, 2003.

Complainant tendered an untimely Additional Submission on June 2, 2003.

Respondent’s response to Complainant’s tardy Additional Submission was received on June 4, 2003.

All submissions were by the parties 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 has established rights in the Michael Savage mark by contract with the registrant.  The only difference between Complainant’s Michael Savage trademark and the disputed domain name is the addition of the word “sucks” to Complainant’s mark.

The Internet is a forum which reaches a worldwide audience, many of whom do not speak the English language; for those users, the word “sucks’ would not sufficiently eliminate any confusion between Complainant’s mark and the disputed domain name.

Respondent does not have any rights or legitimate interests in the <michaelsavagesucks.com> domain.

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.  Respondent is not, and never has been, known as Michael Savage.

Respondent is not making a legitimate noncommercial or fair use of the domain name.  Respondent is unlawfully re-broadcasting clips of Complainant’s radio program, displaying banner advertising, and providing links to commercial websites.

The Respondent’s website includes false and malicious statements regarding Michael Savage and the Complainant.

Respondent has registered the domain name primarily for the purpose of disrupting the Complainant’s business.

Respondent is 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 website or location or of a product or service on Respondent’s website or location.

B. Respondent

The domain name, <michaelsavagesucks.com> is not identical to the trademark Michael Savage.

No one would confuse a domain name suffixed with the word “sucks,” with that of the domain name or trademark they were searching for.

Use of the “sucks.com” suffix attached to a company name has become a standard formula for Internet sites protesting the business practices of a company.

The Respondent registered <michaelsavagesucks.com> in January 2002, two months before the trademark was filed.  The site’s main service is to inform and educate the public about Michael Savage.

The Respondent admits that he has never been commonly known by the Complainant’s “trademark”.

The Respondent did not register the domain name in question, primarily for the purpose of selling, renting or otherwise transferring the domain name to the Complainant or a competitor of the Complainant.

The Respondent did not register the domain name in question, in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name.

The Respondent did not register the domain name primarily for the purpose of disrupting the business of a competitor.  The Respondent is not a competitor of the Complainant.

The Respondent does not use the domain name to intentionally attempt to attract, for commercial gain, Internet users to Respondent’s website, by creating confusion, using the Complainant’s mark.

C. Additional Submissions

Complainant

The standard is whether the domain name is identical or confusingly similar to a trademark in which the Complainant has rights.  The Respondent’s use of the <michaelsavagesucks.com> is confusingly similar to Complainant’s mark “Michael Savage”.

In Stop and Shop, the Panel found that Respondent’s addition of the word “sucks” to Complainant’s mark fails to create a distinction capable of overcoming any confusing similarity.

The confusion arises when somebody searching for information about Michael Savage unintentionally finds the Respondent’s domain.  That is precisely what the Respondent intends.

The Respondent’s purpose is clear, to create a confusingly similar website to disrupt the Complainant’s business.

Respondent has failed to show any legitimate interest in the Complainant’s mark.

Respondent’s bad faith use here is obvious.  Respondent’s website is registered to a fake address.  He listed his domain address with WHOIS as 123 Righteous Avenue, Any town, Arizona.

Respondent

The Complainant’s statement, that the Respondent’s purpose was to create a confusingly similar website to disrupt Complainant’s business, is unfounded and without merit.

Respondent readily admits to broadcasting clips of the radio program, but does not believe it is doing so unlawfully.

The Respondent’s domain name was registered on January 22, 2002.  The trademark, “Michael Savage” did not exist at that time.  The trademark was first filed on January 12, 1998, but was abandoned on March 1, 1999.  The trademark was filed again by Janet Weiner, on March 20, 2002, three months after the Respondent registered the domain name in dispute.

Complainant is not even the owner/applicant of the filed trademark, and furthermore, the trademark has not yet reached, and may never reach the registered status.

The Respondent is a married man with a wife and two children.  The Respondent decided to change the address listed, for the safety of his family.

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 <michaelsavagesucks.com> domain name is not confusingly similar to Complainant’s mark because the disputed domain name includes the term “sucks” after Complainant’s mark. Internet users would not confuse Respondent’s domain name with Complainant’s mark because the addition of the term “sucks” 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).

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 the ICANN Policy, the relief requested is DENIED.

Judge Karl V. Fink (Ret.), Panelist
Dated: June 24, 2003

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