When challenged for abusive registration respondents’ privacy veils are lifted for the duration of the UDRP proceedings and the WHOIS database will so reflect. Proxies if they are truly the registered owners of record and not another name for a privacy service are a different matter. Beneficial owners can remain anonymous, in which event the respondent’s right or legitimate interest will be tested against the proxy’s (fictitious) registration and use of the disputed domain name. A recent example is Audigier Brand Management Group, LLC v. Private Whois Service, FA1003001313253 (Nat. Arb. Forum May 3, 2010). The genesis of the WHOIS database was ICANN’s periodic Memoranda of Understandings with the U.S. Department of Commerce (under which ICANN was created) and presently is embodied in the Affirmation of Commitments effective September 30, 2009. Under these agreements ICANN committed itself to preserving a publicly accessible database of domain name registrants. Paragraph 9.3.1 of the Affirmation reads:
ICANN additionally commits to enforcing its existing policy relating to WHOIS, subject to applicable laws. Such existing policy requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information, including registrant, technical, billing, and administrative contact information.
ICANN achieves this commitment through agreements with accredited Registrars under the RAA which requires Registrars to collect and provide free public access about the registration of the domain name “sufficient to contact a responsible party for a particular gTLD domain name who can resolve, or reliably pass on data to a party who can resolve, issues related to the configuration of the records associated with the domain name within a DNS name server” [GNSO Counsel, April 12, 2006.]
Developments in the use of privacy and proxy services have chipped away at the openness of the directory, but Registrars have an obligation to identify a masked registrant when they receive notice that a complaint has been filed. Anonymity carries a strong negative inference that its intention for registering and paying for a proxy was to take advantage of the complainant and its trademark. In United Computer Products, Co. Inc. v. Domain Name Proxy, Inc Domain Name Proxy, Inc Domain Name Proxy, Inc Domain Name Proxy, Inc., D2008-0017(WIPO February 22, 2008) for example the Registrar released only the Proxy information on a complaint for fraudulent transfer of the disputed domain name. Not surprisingly, the Proxy did not appear.
The Whois database serves a number of different functions, from due process to law enforcement. It has come under attack for invasion of registrants’ privacy but it also has defenders. In the current policy debate it does not appear likely that it will be eliminated, even if some changes are mandated. The ICANN Registrar Accreditation Agreement requires the Registrar to provide a “free public query-based access to up-to-date … data concerning all active Registered Names sponsored by Registrar for each TLD in which it is accredited.” This includes the name and postal address of the Registered Name Holder; the name, postal address, e-mail address, voice telephone number, and (where available) fax number of the technical contact for the Registered Name; and the name, postal address, e-mail address, voice telephone number, and (where available) fax number of the administrative contact for the Registered Name. RAA Section 3.3.1. See also See ICANN, Registrar Advisory Concerning Whois Data Accuracy, May 10, 2002, available at <http://www.icann.org/en/announcements/advisory-10may02.htm>.
Providing false and misleading contact information to the Registrar is a violation of the Policy and constitutes a breach of the “Representations and Warranties” clause of the Registration Agreement and Paragraph 2 of the Policy. Failure to maintain the Whois data or deliberate manipulation of the information provided has consequences. Use of phony names and fictitious addresses or contact information is evidence of bad faith registration and use. The inference in these cases is that Respondent either has a “foul intent” or has no affirmative defense to abusive registration.