foxbusinessnetwork.com

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fox News Network, LLC v. Domains by Proxy, Inc. / Worldwide Directory Services

Case No. D2007-1782

1. The Parties

The Complainant is Fox News Network, LLC of New York, New York, United States of America, represented by Hogan & Hartson, L.L.C., United States of America.

The Respondents are Domains by Proxy, Inc. of Scottsdale, Arizona, United States of America) / Worldwide Directory Services, of Sebring, Florida, United States of America, represented by Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., United States of America.

2. The Domain Name and Registrar

The disputed domain name <foxbusinessnetwork.com> (the “Domain Name”) is registered with Wild West Domains, Inc.

3. Procedural History

The Complaint (naming as Respondent “Domains by Proxy, Inc.”) was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 30, 2007 naming as Respondent Domains by Proxy, Inc. On December 4, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the Domain Name. On December 4, 2007, Wild West Domains, Inc. 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. Specifically, the Registrar identified the registrant as “Worldwide Directory Services”. The Center sent an email communication to the Complainant on December 13, 2007, 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 amended Complaint on December 19, 2007 (naming as Respondent “Worldwide Directory Services”). 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”), 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 December 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 10, 2008. The Response was filed with the Center January 11, 2008.

The Center appointed Harrie R. Samaras, W. Scott Blackmer, and Diane Cabell as panelists in this matter on February 12, 2008. The Panel finds that it was properly constituted. Each member of 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.

On January 25, 2008, Complainant sent to the Center a Reply to Respondent’s Response. Thereafter, on February 4, 2008, Respondent sent a Surreply to the Center. Neither of these submissions are provided for in the Rules, and thus the Panel would not have routinely considered them. Because of the nature of the facts and circumstances in this case, including Respondent’s assertion of reverse domain name hijacking, the Panel considered the additional filings (which reached the Center before the Panel was appointed) in reaching its decision.

The Panel also notes that the Complaint exceeds the 5,000 word limit imposed by the Rules and Supplemental Rules, Paragraph 10(a). This excess includes over four pages of tables identifying information about Complainant’s trademarks which Complainant believes are relevant to its case. Insofar as Complainant’s description of the grounds on which the complaint is made does not exceed the 5,000 word limit, the Panel has rendered its decision on the basis of the Complaint as submitted, without requesting amendment. See Talal Abu-Ghazaleh Int’l, Talal Abu Ghazaleh & Co., Abu Gazaleh Intellectual Prop. and Aldar Audit Bureau v. Fadi Mahassel, WIPO Case No. D2001-0907 (September 13, 2001) (suggesting that “[t]he word limit referred to in the WIPO Supplemental Rules, Paragraph 10a[], is only applicable to the description of grounds on which the Complaint is made . . . .”).

4. Factual Background

Complainant was incorporated in 1996 and began operations soon thereafter as a 24-hour cable television news network. Complainant is a subsidiary of Fox Entertainment Group, Inc. and ultimately of News Corporation. Twentieth Century Fox is a multi-billion dollar international media organization that produces, acquires, and distributes motion pictures. It was founded in 1935 and is a subsidiary of Fox Entertainment Group, Inc. Twentieth Century Fox is the owner of the mark FOX and other trademarks and service marks that include the word “Fox” (the “FOX Marks”), which are used and registered in connection with radio, television, cable television, motion pictures, and other programming and content, along with other goods and services. Many marks within the FOX Marks consist of two or three words, the first of which is “Fox,” the second of which is a descriptive term that identifies the nature of the programming and/or audience, and the third of which, if present, consists of either “Network” or “Channel.” In appendix D to the Complaint, Complainant made of record copies of twenty-five registrations (e.g., FOX, FOX SPORTS RADIO NETWORK, FOX NEWS, FOX KIDS NETWORK) issued by the U.S. Patent and Trademark Office (PTO) and seven applications currently pending before the PTO for FOX or the FOX Marks owned by Twentieth Century Fox.

Complainant is the exclusive licensee of Twentieth Century Fox with respect to the marks FOX NEWS CHANNEL, for example, and a non-exclusive licensee of Twentieth Century Fox for the marks FOX and FOX NEWS, among others. Complainant has been providing services under these marks continuously and in some cases exclusively since its inception. Fox News is transmitted throughout the world for viewing by millions of households. Complainant’s web site, “www.foxnews.com”, has received millions of visitors since September 2007. (Exhibit E).

In addition to the United States registrations and applications, Twentieth Century Fox owns registrations throughout the world for certain of the FOX marks. Twentieth Century Fox and its licensees have used the FOX Marks through television, cable television, motion pictures, print media and the Internet around the world. Twentieth Century Fox and its licensees have spent billions of dollars promoting the goods and services they offer under the FOX Marks including in conjunction with the movies Titanic and Star Wars: Episode I - The Phantom Menace. The FOX Marks also appear prominently on the Fox broadcast television network, which features shows such as American Idol and The Simpsons. Also, Fox News Network is available for viewing in 94 countries. As a result of such longstanding and widespread use, the Panel finds that FOX and the FOX Marks have become widely known in the United States (where both Complainant and Respondent are located) as being associated with Twentieth Century Fox, its licensees, and their goods and services.

Since at least as early as 2004, Complainant has been developing a 24-hour cable news channel to provide detailed business news coverage. The media has reported on these efforts (referring to a planned “Fox Business Channel”) since at least as early as November 5, 2004. (Exhibit F). On February 8, 2007, Rupert Murdoch, Chief Executive Officer of News Corporation, announced the planned launch of a business channel in the fourth quarter of 2007. On the same day, Roger Ailes, Complainant’s Chairman and CEO, announced that the planned “business cable network” (named the “Fox Business Channel” in the press release) will “extend the FOX News brand.” (Exhibit G). A May 4, 2007 article in The New York Times reports Mr. Murdoch’s plans for a “Fox Business Channel” (printout from “www.nytimes.com” furnished by Respondent).

On February 22, 2007, Twentieth Century Fox filed three applications with the PTO to register the mark FOX BUSINESS CHANNEL based on intent to use in connection with various services related to the Business Network. In addition, on July 16, 2007, Twentieth Century Fox filed three applications with the PTO to register the mark FOX BUSINESS NETWORK based on intent to use in connection with services related to the Business Network. Since at least approximately August 26, 2005, Complainant used the domain name <foxbusiness.com> (registered on October 4, 1999 and currently in the name of Twentieth Century Fox) to direct users to its web site, “www.foxnews.com”. On or about October 1, 2007, Complainant posted content at “www.foxbusiness.com” to promote the launch of its business channel.

Respondent Worldwide Directory Services resells domain names and offers Internet advertising and marketing services. According to the Respondent’s Surreply, the Respondent owns more than 1,400 domain names on which it “selectively” posts free content “to get search engine listings” for its clients. Respondent registered the Domain Name on February 8, 2007, and uses it in conjunction with its Internet business.

The Domain Name resolves to a website headed “FoxBusinessNetwork.Com,” with the tag line “State of the art internet business – networking - promotion.” The website offers domain name reseller plans and assistance to businesses in posting web pages on “Fox Business Network.”

The parties agree that on August 20, 2007, Respondent’s CEO, Mr. Hodges, telephoned Twentieth Century Fox concerning the Domain Name. It is undisputed that during the call Mr. Hodges mentioned the figure US$50,000, although, as discussed below, the parties differ in their characterization of the context of that remark.

5. Parties’ Contentions

A. Complainant

Complainant has rights in FOX and the FOX Marks as a licensee of Twentieth Century Fox. Complainant has used various of the FOX Marks since its inception in 1996. The Domain Name is confusingly similar to those marks. Neither the addition of the descriptive and generic terms “business” and “network” to FOX nor the addition of the “.com” extension distinguishes the Domain Name from FOX and the FOX Marks.

Respondent has no right in or to use, and is not engaged in any legitimate use of, the Domain Name. Neither Complainant nor Twentieth Century Fox has licensed or otherwise granted Respondent rights to use the Domain Name.

Respondent has registered and is using the Domain Name in bad faith. Respondent’s knowledge of Complainant’s rights and the creation of the Business Network strongly suggest that registration of the Domain Name was made for the purpose of intentionally attracting, for commercial gain, Internet users to Respondent’s web site at <foxbusinessnetwork.com> by creating a likelihood of confusion with Twentieth Century Fox’s and Complainant’s trademarks in violation of the Policy.

Respondent’s bad faith was further established when Respondent contacted Complainant and offered to sell the domain for $50,000, an amount that greatly exceeds the registration expense.

B. Respondent

Complainant has no rights in and to the mark FOX BUSINESS NETWORK in any jurisdiction. Despite Complainant’s large portfolios of trademarks containing the term FOX, Respondent is not precluded from using the term FOX as part of its own trademark. The phrase “BUSINESS NETWORK” is common. Respondent conducted a preliminary trademark clearance search for the mark FOX BUSINESS NETWORK which yielded no results from domain name registrations, U.S. Trademark Office records or search engine queries.

Complainant filed its trademark applications for FOX BUSINESS NETWORK after Respondent registered the Domain Name. Those applications are based on intent to use the mark. Thus, Complainant has not established rights in FOX BUSINESS NETWORK. There can be no confusion because Respondent’s services are not related to the entertainment industry.

Complainant has not established the absence of Respondent’s right or legitimate interests in the domain name. Respondent adopted and began using the service mark FOX BUSINESS NETWORK as early as 2002. Respondent registered the Domain Name because it believed it was free to use the phrase “business network” to describe a business computer network, and because “fox” refers to Respondent’s president’s nickname, “The British Fox.” Before Respondent received notice of the dispute, Respondent used the Domain Name in connection with a bona fide offering of services, that is, a network of free business web pages, a domain name registration business, and other network business opportunities.

Respondent registered the Domain Name in good faith. It was not aware of Complainant’s intention to use and register FOX BUSINESS NETWORK until August 2007. Respondent did not desire to disrupt Complainant’s business activities and claims that traffic to the site is minimal. Respondent did not solicit the sale of the Domain Name, but merely approached Complainant to discuss strategies to avoid confusion or infringement. As part of that conversation, Respondent revealed that the cost to develop its Fox Business Network had been $50,000. Respondent did not intend to use Complainant’s FOX mark to attract Internet users for commercial gain.

Complainant has engaged in reverse domain name hijacking. Complainant filed its intent to use trademark applications for the mark FOX BUSINESS NETWORK five months after Respondent registered the Domain Name. Complainant very likely knew of Respondent’s use and legitimate interest in the Domain Name at the time it filed the trademark applications and has engaged in Reverse Domain Name Hijacking.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that a Complainant prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

This element consists of two parts: first, does Complainant have rights in a relevant mark and, second, is the Domain Name identical or confusingly similar to that mark.

The Panel finds that Complainant has established rights as a licensee in FOX and the FOX Marks based on long-standing and worldwide use in relation to media networks, as well as U.S. trademark registrations including three of the marks that are particularly relevant to this proceeding: FOX SPORTS RADIO NETWORK, FOX KIDS NETWORK (& Design) and FOX CABLE NETWORKS (& Design). See, e.g., Am. Civil Liberties Union of N.M. v. Vilma Moreales/e:bOOm, S.A., WIPO Case No. D2004-0473 (August 23, 2004) (finding that use of mark by licensee sufficient to establish trademark rights in licensee under the Policy); Toyota Motor Sales U.S.A. Inc. v. J. Alexis Prods., WIPO Case No. D2003-0624 (October 16, 2003) (“As a matter of U.S. law, which governs these proceedings, even a non-exclusive licensee has the right to assert trademark rights in a licensed mark and to take action to protect the licensed mark.”). Thus, Respondent’s challenge to Complainant’s rights in the specific mark FOX BUSINESS NETWORK (the subject of pending trademark registration applications) is irrelevant here; Complainant has established rights in several FOX marks sufficient to ground a Policy complaint.

The Panel further finds that the domain name <foxbusinessnetwork.com> is confusingly similar to marks in which Complainant has rights, for example, FOX, FOX SPORTS RADIO NETWORK, FOX KIDS NETWORK (& Design) and FOX CABLE NETWORKS (& Design). Respondent’s use of the terms “business” and “network” is insufficient to distinguish the Domain Name from relevant FOX Marks or Complainant’s domain name. See Sam Ash Music Corp. v. Spiral Matrix, WIPO Case No. D2006-0606 (July 10, 2006) (finding that addition of generic term “guitar” to “SAM ASH” “does not create sufficient distinctiveness to avoid the probability of confusion.”). In fact, those terms compound the confusion because (1) they are of a similar type, nature and construction as, for example, FOX SPORTS RADIO NETWORK, FOX KIDS NETWORK (& Design) and FOX CABLE NETWORKS (& Design, and (2) Complainant does in fact provide television network news focused on business. See Nat’l City Corp. v. MH Networks LLC, WIPO Case No. D2004-0128 (June 15, 2004) (finding that the use of “a descriptor which precisely matches one of the core services provided by [c]omplainant . . . “ increases the likelihood of confusion). Furthermore, the addition of the “.com” suffix is insufficient to distinguish the Domain Name from the FOX Marks.

For the foregoing reasons, the Panel finds that paragraph 4(a)(i) of the Policy has been satisfied.

B. Rights or Legitimate Interests

With respect to the Respondent Domains by Proxy, Inc., the Panel finds no evidence that this Respondent actually owned or controlled the Domain Name. As described on its website at “www.domainsbyproxy.com,” Domains by Proxy, Inc. offers a domain privacy service that provides a “private” contact name and address for the registrar’s WHOIS database while leaving control of the registered domain name in the hands of the party who pays for the registration. Domains by Proxy, Inc. indicates that it maintains the privacy of the beneficial owner unless and until there is a legal dispute regarding the domain name, as described in its Domain Name Proxy Agreement:

“This means the Whois directory will revert to displaying Your name, postal address, email address and phone number. We take this action because DBP will not become involved in any legal or other matters between You and third parties.”

Such registration merely serves to cloak the name and address of the beneficial owner until such time as a legal claim or Policy complaint is asserted. Once that happened in this case, the registrar changed the name of the registrant to that of Respondent Worldwide Directory Services. Thus, there is no need for the Panel to inquire into the rights or legitimate interests of the Respondent Domains by Proxy, Inc., and the Respondent Domains by Proxy, Inc. has not asserted that it has any rights or legitimate interests in the Domain Name.

Respondent Worldwide Directory Services contends that Complainant has not established the absence of Respondent’s rights or legitimate interests in the Domain Name. It is uncontested that neither Complainant nor Twentieth Century Fox has licensed or otherwise authorized Respondent Worldwide Directory Services to use the FOX marks in connection with Respondent’s business or as part of the Domain Name. Insofar as Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name (Spencer Douglass, MGA v. Bail Yes Bonding, WIPO Case No. D2004-0261), this shifts the burden to Respondent to show by concrete evidence that it has rights or legitimate interests in the Domain Name. See, e.g., Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., WIPO Case No. D2000-0270. Indeed, Paragraph 4(c) of the Policy is directed to respondents when responding to a Complaint and is titled, “How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name.” Paragraph 4(c) further provides that “[a]ny of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services before any notice of the dispute; or

(ii) that it has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) that it was making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark.”

Respondent filed three declarations altogether, two by its president, Derek G. Hodges, and another by Mr. Clough, a certified public accountant in Florida who has used Respondent’s web page development and promotional services since 2002. Respondent relies on these declarations to assert that it adopted and began using the service mark FOX BUSINESS NETWORK at least as early as 2002. (This is clearly stated in the Hodges declarations; the Clough declaration says that “Mr. Hodges promotes his services offered under the mark FOX BUSINESS NETWORK” and that Clough has, since at least as early as 2002, provided a link on his website to Mr. Hodges’ service.) Respondent further claims, referring to the declarations, that before it received any notice of this dispute, it used the Domain Name in connection with a bona fide offering of services, namely, the offering of a “network” of business web pages, a domain name registration business, and other network business opportunities. Respondent states that before it registered and began to use the Domain Name, its “Fox Business Network” of listed commercial websites appeared on “the Turbosales website, and later, on the Worldwide Directory Services, Inc. websites.”

Respondent’s exhibits include a single example of Respondent’s use of the asserted mark FOX BUSINESS NETWORK prior to 2007. This consists of a printout from Respondent’s website at “www.turbosales.tzo.com” dated July 2006 showing a list of businesses catering to the British expatriate market in the United States of America that had joined Respondent’s online advertising network. This page is titled “Fox Business Network run by the British Fox.” Below the heading “Search Results” are the words, “The ‘British Fox’ recommends that you setup your own Domain Registration and Hosting Business by clicking here.” An intellectual property notice at the bottom of the page asserts as follows: “Fox Business Network is a service mark of Worldwide Directory Services, Inc. Copyright 2003, 2004, 2005 All Rights Reserved.” Respondent explained by way of Surreply that because his network listings were generated by an offline database, there is no public archive of this or similar web pages. Apart from this printout, Respondent offered no contemporaneous evidence of using “Fox Business Network” as a business or trade name.

Before Complainant’s announcement in February 2007 of its plans to launch a Fox business channel, Respondent appears to have used “Fox Business Network” only as the title of an online directory of businesses, with links to hosted web pages, which Respondent refers to as a “business portal.” From the 2006 printout, it appears that this directory appeared on Respondent’s website at “www.turbosales.tzo.com”, but the archived versions of the home page for that website do not refer to “Fox Business Network”, and other pages are not archived.

Paragraph 4(c)(2) of the Policy is not relevant, as there is no evidence that the Respondent Worldwide Directory Services, Inc. has been known as “Fox Business Network,” nor that Mr. Hodges has been known by that name. The Panel is not inclined to view a business directory as an “organization” particularly where there is no indication of organizational relationships. Fox Business Network appears to be merely the name for an online business directory.

Nevertheless, the Policy, paragraph 4(c)(1), protects domain name registrants who, before any notice of the dispute, have used the domain name in connection with a bona fide offering of goods or services. Although the evidence is slender, Respondent has provided some proof (the Hodges and Clough declarations and the 2006 website printout) that Mr. Hodges was known by the nickname “the British Fox” and that his company, the Respondent here, operated an active and bona fide business that used the term “Fox Business Network” in its promotion for several years before this dispute arose.

Complainant infers from the timing of the Domain Name registration and Respondent’s subsequent telephone call in August 2007, that Respondent registered the Domain Name not in furtherance of a legitimate business activity but only because the Domain Name might be confused with Complainant’s proposed business channel. Respondent denies such intent. While Respondent’s hasty domain name registration after the Complainant’s announcement in February 2007 is suspicious (and not adequately explained be Respondent), this action might just as well be attributed to an effort to protect a name, “Fox Business Network,” that Respondent had been using before Complainant announced its own intentions to use a similar name (“Fox Business Channel”).

Complainant implies in its Reply that Respondent’s evidence concerning prior use of the name is not genuine, but there are no compelling reasons to conclude that it was fabricated. A random sampling of the businesses listed on the 2006 printout have current websites and appear to be active businesses catering to the British expatriate market, as claimed by Respondent. Three are shown as having joined the Fox Business Network before 2002, which Complainant finds suspicious, but the declarations submitted by Respondent state that the network has been operating since “at least as early as 2002,” when Respondent Worldwide Directory Services, Inc. was incorporated. Complainant questions why the 2006 printout shows a website address in the <tzo.com> domain and does not appear among pages saved in the Internet Archive Organization. Respondent’s Surreply provides evidence that “www.turbosales.tzo.com” was its website at a fixed Internet Protocol address leased from Tzolkin Corp. and explains that pages displaying directory search results were provided from Respondent’s FileMaker Pro server and not routinely archived. In short, Respondent’s evidence of prior use of the name “Fox Business Network” is spare but plausible.

Similarly, the parties disagree as to the substance of the August 2007 telephone conversation in which Respondent claimed his business was worth $50,000, and there is no evidence concerning the call except for competing declarations of the participants. Complainant alleges that the call was a bad-faith attempt to extort excess value, which would cast doubt on Respondent’s claim to have registered the Domain Name in connection with a legitimate business, and Respondent contends that the dollar figure was a declaration of the value of his associated business network enterprise, not just the Domain Name. Possibly Respondent sought to take advantage of Complainant’s new interest in the FOX BUSINESS NETWORK mark for which it had filed an intent-to-use trademark application roughly a month before the call. This does not necessarily negate Respondent’s legitimate interest in registering the Domain Name in February 2007, based on its existing use of the name “Fox Business Network”. The evidence of intent is contested, and Complainant has the burden of persuasion.

The Panel notes that a UDRP proceeding — where there is no evidentiary discovery, cross-examination of witnesses, or expert testimony, and where the Panel cannot assess the credibility of witnesses in person — is not the ideal forum for testing the veracity of witnesses or the authenticity of documentary evidence. Those functions are better fulfilled in a judicial proceeding than in an expedited administrative proceeding under the Policy, and a Panel decision under the Policy in no way precludes a party from pursuing judicial remedies.

In the context of this UDRP proceeding, the Panel finds sufficient plausible evidence of Respondent Worldwide Domain Services’ prior use of the name “Fox Business Network” in connection with a bona fide offering of goods and services to conclude that the Complainant has not met its overall burden of persuasion on the second element of the Complaint.

C. Registered and Used in Bad Faith

Insofar as the Panel finds that Complainant has failed to establish that the Respondent Worldwide Directory Services, Inc. lacks a legitimate interest in the Domain Name, a necessary condition for relief under the Policy, there is no need to address the element of bad faith.

D. Reverse Name Hijacking

Reverse domain name hijacking is found when “Complainant knew of either the Respondent’s unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use, and nevertheless brought the Complaint in bad faith.” GLB Servicos Interativos S.A. v. Ultimate Search Inc., WIPO Case No. D2002-0189 (May 29, 2002). Reverse domain name hijacking is defined in the Rules as “using the Policy in bad faith to attempt to deprive a registered domain name.” The onus of proving bad faith is on the Respondent.

Respondent claims that Complainant has engaged in reverse domain name hijacking, because, among other things, Complainant (1) filed its three intent-to-use trademark applications directed to the mark FOX BUSINESS NETWORK in the PTO five months after Respondent registered the Domain Name, and (2) Complainant likely would have conducted some sort of trademark clearance search from which it would have known of Respondent’s interest in the Domain Name. Respondent further asserts that by filing the applications Complainant disregarded Respondent’s prior rights.

Respondent’s claim must fail because Respondent has not proved that Complainant is using the Policy in bad faith in an attempt to deprive Respondent of its Domain Name. Complainant has long-standing rights in the well-known FOX Marks and announced its intent to launch a Fox-branded business channel on the same day that the Domain Name was registered. In some circumstances, publicity concerning an announced brand may give rise to bad faith claims under the Policy even before a trademark is established. See, e.g., Air Deccan v. Premium Domain, WIPO Case No. D2005-0895 (November 15, 2005). Respondent has not provided evidence that it had obtained trademark protection for “Fox Business Network,” nor does it appear that Respondent furnished the (disputed) evidence concerning its prior use of the name until after the Complaint was filed. Therefore, the Panel declines to enter a finding of reverse domain name hijacking in this proceeding.

7. Decision

For all the foregoing reasons, the Complaint is denied.