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Uses and Abuses of Privacy Services

Use of privacy services is a merely one factor among others to be taken into consideration when assessing bad faith. On the one hand there are respectable reasons for protecting one’s privacy, but the service can also mask illicit conduct. Failure to disclose the beneficial owner may be a factor in determining bad faith, BzzAgent, Inc. v. bzzaget.com c/o Nameview Inc. Whois IDentity Shield and Vertical Axis, D2010-1187 (WIPO September 17, 2010) and BzzAgent, Inc. v. bzzaget.com c/o Nameview Inc. Whois IDentity Shield and Vertical Axis, D2010-1188 (WIPO September 17, 2010), but using a privacy service does not prima facie support a finding of “foul intent,” CyBerCorp Holdings, Inc. v. Jay Allman, FA 0403000244090 (Nat. Arb. Forum May 14, 2004).

As a general rule the aim is not to interfere with a respondent’s business decision to shield personal information, but to find“a proper balance between privacy, on the one hand, and the need for accountability and cybersquatting prevention, on the other hand,” U-sream.TV, Inc. v. Vertical Axis, Inc, D2008-0598 (WIPO July 29, 2008). In the BzzAgent cases the Panel found that “it should draw an adverse inference” from the Respondent’s use of a privacy shield, because “[i]n the circumstances it seems reasonable to infer that the main purpose for which the Respondent Vertical Axis has used a privacy service is to cause the Complainant difficulty in identifying other domain names registered by the same Respondent.” However, the Panel does not exclude other circumstances in which the privacy service is reasonable. He imagines, for example, that the use of a privacy service “may [be] warrant[ed] … as protection from retribution if the … website associated with the Disputed Domain Name [were] critical of, or satirising, the Complainant’s business.”

The problem centers on use of the services that effectively delays resolution of the complaint by disguising the beneficial owner of the domain name, Divex Limited v. ZJ, Sam Chang and Tim NG., D2007-0861 (WIPO September 27, 2007). As the Divex Complainant pointed out there are many reasons for using a proxy registration service that are legitimate and consistent with good faith: 1) ease of account management and re-registration (especially where the registrant has registered a portfolio of domain names); 2) avoidance of identity theft; and 3) evasion of spam.

Their use also gives the respondent “the ability to maintain the confidentiality of a registration strategy, such as the registration of numerous domain names related to a specific industry (such as travel, or goods and services available in a specific geographic area,” iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services [2658], D2007-1435 (WIPO December 18, 2007). On the other hand, masking and proxy services can also be used to frustrate a trademark holder’s claim of abusive registration, TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, D2006-1620 (WIPO March 7, 2007).

As discussed in Friday’s Note on the BzzAgent cases, the Panel distinguishes between high volume registrants and others. Panelists in a number of cases have questioned a Pay-Per-Click advertiser’s “needs to protect its identity except to frustrate the purposes of the Policy or make it difficult for a brand owner to protect its trademarks against infringement, dilution and cybersquatting,” Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008). The concern is that the shield may also allow registrants to transfer domain name registrations amongst themselves without any public record that there has been a transfer, thus allowing them to evade enforcement of legitimate third-party rights or to obstruct proceedings commenced under the Policy.”

Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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