Whois privacy is “intent to deceive” and evidence of bad faith: UDRP panelist
A shocking interpretation of whois privacy and domain name investing.
The majority of a UDRP panel deciding a case over the domain name montezuma.com got it right, determining that the complainant didn’t prove a lack of rights or legitimate interests in the domain name, nor that it was registered and used in bad faith.
But panelist Houston Putnam Lowry dissented, inserting a shocking interpretation of the use of whois privacy.
He argues that the use of a Whois proxy service obfuscates acquiring rights or legitimate interests in a domain name. He also states that the use of a Whois proxy service shows bad faith that must be rebutted. “Only people with an intent to deceive conceal their identity,” he writes.
Additionally, Lowry argues that, since the domain name owner registered the domain with the hopes of selling it to a previous owner, he targeted the “class to which complainant belonged” (i.e, firms that might have previously owned the domain).
It’s an incredibly activist position. I’m publishing his dissent in full:
Respondent registered the domain name using a privacy service. The domain name was being registered in a commercial context (Respondent claims to be in the business of buying and selling domain names). This means the domain name was owned by a legal owner that has no rights to the domain name.
All rights to the domain name were held by the undisclosed beneficial owner. Since Respondent has done nothing publicly to associate itself with the domain name, Respondent has purchased no rights or legitimate interests with respect to the domain name. This domain name does not represent Respondent’s business, but Respondent’s inventory.
Bad faith is measured at two different times: at the time of registration and then the period of use. Since Complainant did not have rights to the mark at the time of registration (March 3, 2000), clearly Policy ¶4(b)(ii), ¶4(b)(iii) and ¶4(b)(iv) are not applicable since neither Complainant nor its predecessors had rights to the mark at that time. The main remaining question is Policy ¶4(b)(i).
This Panel member is persuaded there is bad faith registration and use since of a number of factors. The first factor is using a privacy service in a commercial context raises a rebuttable presumption of bad faith. Respondent has done nothing to rebut that presumption. Respondent does not need to conceal its identity from the marketplace to be a domain name reseller. Respondent offers no explanation as to why Respondent concealed its identity (and conceals it to this very day). Only people with an intent to deceive conceal their identity, which is the very definition of bad faith. Since Respondent did this at the time of registration and through the present day, there was bad faith registration and use of the domain name.
Second, Respondent went looking for a sizable quantity of recently expired domain names to register. Clearly, this was not done for an eleemosynary purpose. Respondent intended to resell those domain names. Respondent advertised this domain name for sale (as it presumably did for others). Clearly, Respondent expected to sell this domain name at a profit (meaning it must expect to resell the domain name for an amount in excess of it’s out of pocket costs in order to stay in business). The primary market was the old owners of the domain names. While Complainant may not have been specifically targeted, a class to which Complainant belonged was specifically targeted. While Respondent could have sent an email to all of the former owners, it did not do that.
Third and finally, Respondent was not using this domain name. It was just parked. The fact Respondent parked a lot of domain names instead of just one domain name ought to not change the analysis. To purchase a confusingly similar domain name just to park it constitutes bad faith registration and use.
