Fox.org UDRP Decision is Upsetting

Last night, I saw that WIPO had posted an update regarding the Fox.org UDRP. Fox.org is a domain name registered in 1996, and I think “Fox” is a pretty generic term. The decision was listed as “Transfer,” which meant the complainant, Fox Media LLC, had prevailed. I hoped it was an error, but unfortunately, that was not the case. The decision was published today, and Fox Media LLC won the decision and will get the Fox.org domain name barring legal intervention.

The UDRP respondent in this case is a person named Bill Biersdorf. Interestingly, the name of the registrant differed from what was provided by the domain registrar:

“On December 6, 2022, the Registrar 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 (REDACTED FOR PRIVACY, Fox Research Institute) and contact information in the Complaint.”

Notably, the domain name appears to have been registered to a Fox Research Institute, and that would seem to explain why it owned Fox.org. A research institute called Fox Research Institute should have every right to own Fox.org, in my opinion.

When I saw the decision was updated, I posted my thoughts on why I disagreed with a transfer order. Using the Whois History tool at DomainTools, I could see that Fox Research Institute owned this domain name since at least 2000:

According to @WIPO, Fox Media LLC won its UDRP against the generic https://t.co/woQaE5V6mp domain name. The decision hasn’t been published, but I hope it’s an error. It’s been long owned by a company called Fox Research Institute. Historic Whois record via @DomainTools. pic.twitter.com/ngPT52qq55

— Elliot Silver (@DInvesting) February 2, 2023

DomainTools Whois History tool isn’t free, so I wouldn’t expect a UDRP panelist to necessarily use it to check ownership. However, the Wayback Machine on Archive.org is a free tool that can be used to determine how a domain name has been used. In fact, other UDRP panelists have used and cited Archive.org in their decisions. A look back at the first record on Archive.org from 1996 shows that the domain name appears to have been registered and used by the same entity as today.

As you can see, the title of the website is “Fox Gateway.” In addition, right in the middle of that page is a link to “Bill Biersdorf’s home page.” Bill Biersdorf is the respondent in this UDRP, filed almost 30 years after this Archive.org entry.

To win a UDRP, a complainant needs to prove the domain name was registered and is being used in bad faith. I am not a lawyer, but it is pretty clear that it is not “and/or.” Even though the domain registrant did not respond to the UDRP, it seems pretty obvious to me the domain name was not registered in bad faith. That information alone should have been enough to deny the complaint. This is especially so because there are so many companies and organizations called Fox or have Fox in their branding.

The domain registrant did himself / itself no favors by not responding to the UDRP. However, I think the panelist should have at least looked into the registrant name submitted by the registrar. I think the fact that it is called Fox Research Institute may have been enough to prevail, but its usage dating back to 1996 should have been enough to prove it wasn’t registered in bad faith. I don’t think it is obviously registered in bad faith as it relates to this UDRP complainant.

According to the complaint, “The Complainant also asserts that email accounts related to the disputed domain name were used to send fraudulent emails with the goal of phishing information from unsuspecting persons by impersonating Complainant’s employee.” Even if that is true, it does not eliminate the requirement that the registrant registered and used the domain name in bad faith, and I do not think that is the case.