[registrars] WHOIS Proxy and UDRP

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

As mentioned previously, most registrar-operated whois proxy services deal
with UDRP complaints by supplying the actual registrant contact information
in response to a UDRP confirmation message from a dispute resolution
provider, and this practice became of issue in a UDRP proceeding recently.

An excerpt from the UDRP decision to be published shortly is copied below.
The significant points relative to RAA 3.7.7.3 are:

1) The Panel does not seem to understand that a domain name can be
transferred during a UDRP upon written consent of the transferee.  The
Panel's reasoning suggests that they are not aware that, in any event, it is
the registrar who is responsible for carrying out a transfer order.  What
one might do is to add to one's proxy procedure, a provision that the
registrant consents, in advance, to be the respondent for any UDRP
proceeding brought against the name.  That would appear to satisfy the part
of UDRP Rule 8 which the Panel neglects.

2) The Panel did avoid suggesting that they were the proper body from whom
to obtain an authoritative interpretation of the RAA.

The full decision is at http://www.johnberryhill.com/wwf.pdf, and should be
posted as HTML at WIPO within a few days.

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The name of the Registrant of the disputed Domain Name at the time when the
Complaint was filed was Moniker Privacy Services.  After the Complaint had
been filed, the Center sought particulars of the registration and was
advised by Moniker that Mr. Gregory Ricks was the registrant and his details
were provided immediately.  

>From the material before the Panel, it transpires that Mr. Ricks acquired
the disputed Domain Name through a privacy service operated by Moniker,
known as Moniker Privacy Services.  His aim in using a privacy service, as
alleged in the Response, was to avoid unwanted junk and spam email and
telephone solicitations made on the basis of information published in the
WHOis database.  Mr. Ricks acknowledged that the Domain Name had been
registered by him using the Moniker Proxy service.  The Complaint was
amended at the request of the Center to show both Moniker and Gregory Ricks
as Respondents.  The Complainant had opposed this request but in the end
went along with it.

Mr. Ricks has acknowledged his involvement as the registrant and has invited
the Panel to regard his conduct as that of the Respondent for the purposes
of decision.  It is accordingly appropriate to refer to him as the
Respondent.  References hereafter to the Respondent will be to Mr. Ricks.

Mr. Ricks used a proxy service to achieve registration of the disputed
Domain Name.  This is becoming an increasingly common occurrence.  Under
this arrangement the name of the true registrant is not displayed in the
Registrar?s WHOis database.  It is said that proxy registrations have become
popular with the rise of automatic harvesting of email and postal addresses
and telephone numbers for the purpose of email spamming, direct marketing by
mail and phone and also for fraud and identity theft.  (See Fifth Third
Bancorp v. Secure Whois Information Service, WIPO Case No. D2006 0696.)  

In the early days of cases under the Policy, there were numerous instances
where respondents had provided false or misleading contact information.  The
famous Telstra v. Nuclear Marshmallows, WIPO Case No. D2000 0003, is a good
example.  In almost all those cases, Panels were able to take a rather
jaundiced view of the provision of false information by registrants hiding
behind an alias or the name of some other person.  However, there can be
wholly legitimate reasons for a person wishing to protect privacy by means
of a proxy service.  Many reputable registration services now offer a proxy
registration service.

Difficulty arises when an administrative proceeding is brought under the
Policy, at which stage the domain name should become frozen pending
resolution of the Complaint.  Without addressing here the proper position
vis à vis trademark owners making enquiries in the context of a possible
complaint, it is for the Proxy to disclose the contact information of the
beneficial owner to the dispute resolution provider and any Panel appointed
by that provider.  In the present case, full disclosure of Mr. Ricks?
beneficial ownership of the disputed Domain Name has been made by Moniker.
But there could be difficulty if the Proxy did not do so.  There is a
potential for abuse by cybersquatters.

Clause 3.7.7.3 of the ICANN Registrar Accreditation Agreement is relied on
by Moniker and provides as follows:

?Any Registered Name Holder that intends to license use of a domain name to
the third party is nonetheless a registered domain holder of record that is
responsible for providing its own full contact information and providing and
updating accurate administrative contact information that it could to
facilitate timely resolution of any problems that arise in connection with a
registered domain name.  A Registered Domain Name Holder licensing use of a
registered name according to this provision shall accept liability for harm
caused by wrongful use of the registered name, unless it promptly discloses
the identity of the licensee to the party providing the Registered Name
Holder reasonable evidence of actionable harm.?

The Panel is not satisfied that the above clause really covers the proxy
phenomenon.  It seems to refer to the licensing of the use of a domain name
in much the same way as to the licensing of the use of a trademark.

Once it was aware of the Complaint, Moniker should not have changed the
publicly available WHOis information as to the identity of the registrant,
in addition to making the above-mentioned disclosure.  It has taken on the
responsibility of the registration of domain names on behalf of another and
presumably, has obtained some business advantage for this service.  One of
the consequences of this mode of doing business is that during the pendency
of a UDRP proceeding the Proxy as registrant cannot change the domain name
registration or transfer it to the beneficial owner.  

Under the Policy and Rules as presently worded, any transfer of the name of
the registrant, no matter how well intentioned, should not occur because of
paragraph 8(a) of the Policy.  Nor is proxy registration the same thing as
naming the true registrant in the register but giving the registrant?s
address as being care of the Registrar.  The Panel further notes that any
transfers by proxy holders in the context of a UDRP case also raise
questions as to how to ensure that the transferee was indeed the beneficial
owner for whom that registration had been made.

If the Complainant were to prevail in this proceeding, then there would
normally have to be a transfer from the registrant (in this case Moniker) to
the Complainant in terms of the Policy, despite the underlying beneficial
ownership.

The Panel in the Fifth Third Bancorp case considered that the party who
registered the domain name is a proper respondent in a UDRP proceeding.
However, this Panel disagrees with the view expressed in that case that the
Policy does not contemplate in rem proceedings against the Domain Name as if
it were a certain kind of property such as land or ships where the register
is paramount.  Because of the complications that may arise from the use of
proxies or indeed from cases where wholly fictitious registration
information has been provided and the true registrant cannot be known, then
there is much to be said for considering the disputed Domain Name as an
asset in rem susceptible to a cancellation or transfer order.  That would
make the system similar with, for example, land registration under the
Torrens system (used in many common law jurisdictions) or ship registration.
It may also offer a practical approach in the context of the UDRP to the
increasing use of automated registration programs, which seem to make
?moving targets? out of registrants.

Indeed, the definition of Respondent in the Rules ?means the holder of a
domain name registration against which a Complaint is initiated?.  The Rules
seem to contemplate only the holder of the registration as the respondent.
The practice of having naming both the Proxy Service and the beneficial
owner of the registration was followed in two recent WIPO decisions
Midwest/GRS Inc and Others v. Moniker Privacy Services/Forum LLC/Registrant
187640 info@xxxxxxxxxxxxx, WIPO Case No. D2006 0478 and MBI, Inc. v. Moniker
Privacy Services/Nevis Domains LLC, WIPO Case No. D2006 0550.  

The procedure in proceedings involving a proxy WHOis service was described
in Ohio Savings Bank v. 1&1 Internet, Inc. and David Rosenbaum, WIPO Case
No. D2006 0881 as follows:

?When such circumstances arise, the Panel understands that the Center?s
current practice is typically to require the complainant to amend the
complaint ? either to name both the privacy service registrant and the party
using the privacy service or to simply name the party using the privacy
service.  This practice is sensible and has the benefit of trying to get
notice of the proceeding to the party that is most affected the proceeding.
However, it may simply be that one of the disadvantages of using a privacy
service ? to be weighed against the advantages of using such a service ? are
delays or lack of notice of proceedings that rely on the information
contained in the registration record to provide notice.  By this the Panel
does not intend to suggest that such a delay or lack of notice is
insignificant, but that they may simple be one of the consequences of the
choice to use such a service, particularly where proceedings under the
Policy look to and rely on information in the registration record maintained
by the registrar.?

The practice of having two Respondents to a proceeding under the Policy
where one is the entity against which any order has to be made and the other
is the party vitally interested in the outcome and whose conduct is in issue
is well recognised in litigation and in rules of civil procedure ? certainly
in common law jurisdictions, as it helps to inform interested parties.  This
may not always be practicable, however, and in any event is not a
requirement under the Policy or Rules, which are predicated on the
responsibility of the registered holder of the domain name.

Moniker made a preemptory demand to the Center that its name be discharged
from the proceedings.  The Panel referred this request to the parties for
comment.  It also requested Moniker to advise whether the name of the
registrant had been changed and its justification for so doing.  The
Complainant insisted that Moniker should remain and the Respondent submitted
that it should not but it was indifferent.  The Panel has considered these
comments.

Moniker replied to this invitation somewhat acerbically.  It challenged the
right of the Center to make the enquiry.  It relied on Clause 3.7.7.3 of the
Registrar Accreditation Agreement, cited earlier, as a justification for
showing Mr. Ricks as registrant on receipt of the Complaint.  

It is not part of the Panel?s functions to adjudicate on a registrar?s
obligations except to the extent those obligations impinge on a UDRP
complaint.  The Panel, as indicated earlier, does not read that clause in
that way, but this proceeding provides no forum for the proper disposition
of that point of interpretation.  All the Panel can do is make its own
interpretation of the clause which does not, on its terms, permit a change
in the publicly notified registrant while a complaint about the disputed
Domain Name remains unresolved.

The Panel considers that this Complaint should proceed with both named
parties for the reasons discussed above.  It should be stressed that Moniker
remains a pro forma respondent:  that the conduct to be discussed in this
decision is that of Mr. Ricks and not that of Moniker and that Moniker has
acted promptly in supplying Mr. Ricks? details.
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