Depending on HOW you use the domain will depend on if you violate their TM. Do you plan to make money doing this? If so..that's a violation...
Check archive.org and see if it was used for anything in the past.
The dot com may be available because someone before you got a C&D letter...
For a fan site, you should be ok, for making money, you are not ok...
It doesn't matter whether you make money or not...
From WIPO on Fansites for UDRP:.
2.5 Can a fan site constitute a right or legitimate interest in the disputed domain name?.
This section only deals with fan sites that are clearly active and non-commercial. There are many UDRP cases in which the respondent claims to have an active non-commercial fan site but the panel decides otherwise..
See Helen Fielding v. Anthony Corbert aka Anthony Corbett D2000-1000 , Transfer.
View 1: An active and clearly non-commercial fan site may have rights and legitimate interests in the domain name that includes the complainants trademark. The site should be non-commercial and clearly distinctive from any official site.
Estate of Gary Jennings and Joyce O. Servis v. Submachine and Joe Ross D2001-1042 , Denied.
2001 White Castle Way, Inc. v. Glyn O. Jacobs D2004-0001 , Denied.
View 2: Respondent does not have rights to express it's view, even if positive, on an individual or entity by using a confusingly similar domain name, as the respondent is misrepresenting itself as being that individual or entity. In particular, where the domain name is identical to the trademark, the respondent, in it's actions, prevents the trademark holder from exercising the rights to it's mark and managing it's presence on the Internet.
David Gilmour, David Gilmour Music Limited and David Gilmour Music Overseas Limited v. Ermanno Cenicolla D2000-1459 , Transfer.
Galatasaray Spor Kulubu Dernegi, Galatasaray Pazarlama A.S. and Galatasaray Sportif Sinai Ve Ticari Yatirimlar A.S. v. Maksimum Iletisim A.S. D2002-0726 , Transfer..