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Distinguishing “Holder” and “Registrant”

A proceeding is properly commenced against the “holder” of the domain name who by definition may or may not be the registrant (proxy for example). Paragraph 2 of the Policy defines “Respondent” as “the holder of a domain-name registration against which a complaint is initiated.” Generally, “holder” and “registrant” are the same person, but not so (or not necessarily so) in cases involving multiple domain names consolidated in one proceeding. Kimberly-Clark Corporation v. N/A, Po Ser and N/A, Hu Lim, D2009-1345 (WIPO December 7, 2009) (two domain names, <kleenexcube.com> and <mykleenexcube.com>). Paragraph 3(c) of the Rules of the Policy provides that the “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder” (emphasis added). Whether as proxy, nominee or alias an apparent holder (that is, the person listed in the Whois directory as the registrant) may or may not control the domain name(s).

In Kimberly-Clark there were two registrants but one “holder.” A common feature of the several permutations of holder is that “while the registrant of record has apparent control over the domain name, some other person has practical control…. [In that event] both persons should be considered to be a ‘holder’ of the disputed domain name,” Id. However, alleging that multiple domain names are jointly controlled is not sufficient to satisfy the rule.

If the registrants are in fact separate legal entities the Policy would usually require the Complainant to initiate separate proceedings against each. In this event Panels partially dismiss complaints to the extent that they include additional unrelated respondents, as in Boehringer Ingelheim Pharma GmbH & Co. KG v. Domains by Proxy, Inc / Pradeep Dadha / Jonathan Valicenti, D2006-0465 (WIPO June 14, 2006) (against one of the two respondents, dismissed without prejudice); Deckers Outdoor Corporation v. Karen McDougall, Frances Kirwan, Richard Abbots, Nicola Hammill, Sadika Ekemen, Stephen Gould, Christina Papadaki, Felicity Poole, Wang Changgui and [redacted], FA0908001281082 (Nat. Arb. Forum November 30, 2009).

The phrase “same domain-name holder” has been construed to mean the beneficial owner controlling different but related registrants identified in the contact details held by the registrar or registrars. Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., D2005-0890 (WIPO September 25, 2005) (22 domain names found to be controlled by the same person, some of which were switched into different registrant names to obstruct the Complainant following service of a cease and desist email). Hidden beneficial or controlling ownership has been found by matching addresses, telephone numbers and email accounts across a spectrum of domain names, within voice mail directories of associated business entities and reverse e-mail look up. Asset Marketing Systems, LLC v. SmartBuy Corporation, Chan Organization, Mitchell de la Cruz, Gongju Jung et. al., D2004-0492 (WIPO September 17, 2004).

If the evidence establishes that the respondents are aliases they will be treated as alter egos of the controlling entity and be resolved in a single proceeding. Thus, “a single complaint will be properly brought in respect of multiple domain names where there is a common person holding an interest in those domain names,” Kimberly-Clark.

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