There is developing case authority on registration by proxy and through privacy services. They are, as the Panel notes in Divex Limited v. ZJ, Sam Chang and Tim NG, D2007‑0861 (WIPO September 21, 2007) (Complaint denied), a relatively recent phenomenon. It does not connote foul intent by a respondent and can be perfectly legitimate, but failure to disclose the beneficial owner may also be a factor in determining bad faith. In U-sream.TV, Inc. v. Vertical Axis, Inc, D2008‑0598 (WIPO July 29, 2008) (Domain transferred with dissenting opinion) the majority stated “a proper balance between privacy, on the one hand, and the need for accountability and cybersquatting prevention, on the other hand, must be struck.” Anonymity is particular troublesome where the respondent is a commercial venture competing with the complainant, Bank of America Corporation v. [Registrant], FA0809001226147 (Nat. Arb. Forum November 7, 2008) (Domain transferred).
Registrars developed the privacy services in reaction to ICANN's requirement that registrants disclose their identity and contact information for inclusion on a public database known as the WHOIS directory and in response to a demand among the community of registrants concerned about exposure to spam or worse. The current elements that must be displayed by a registrar are: 1) The identity of the Registered Name; 2) The names of the primary nameserver and secondary nameserver(s) for the Registered Name; 3) The identity of Registrar (which may be provided through Registrar's website); 4) The original creation date of the registration; 5) The expiration date of the registration; 6) The name and postal address of the Registered Name Holder; 7) The name, postal address, e‑mail address, voice telephone number, and (where available) fax number of the technical contact for the Registered Name; and 8) The name, postal address, e‑mail address, voice telephone number, and (where available) fax number of the administrative contact for the Registered Name.
In theory, proxy contracts are not intended to facilitate registrants evasion of process, but to shield them from invasion of privacy. Although there can be many legitimate reasons for using a proxy registration service many of them consistent with good faith – the Divex respondent listed three reasons, 1) ease of account management and re‑registration (especially where the registrant has registered a portfolio of domain names); 2) the avoidance of identity theft; and 3) the evasion of spam – masking and proxy services can also be used to frustrate a trademark owner’s claim of abusive registration, as noted by the Panel in TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, D2006‑1620 (WIPO March 7, 2007). The respondent in iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services [2658], D2007‑1435 (WIPO December 18, 2007) added to list of reasons for the privacy service, “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.”
In response to the wide spread use of masking services Providers have developed a practice of requiring Complainants to name both the Proxy Service and, if identified, the beneficial owner of the registration. Midwest/GRS Inc and Others v. Moniker Privacy Services/Forum LLC/Registrant 187640 info@fashionid.com, D2006‑0478 (WIPO June 12, 2006); MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC, D2006‑0550 (WIPO July 2, 2006). The Panel in Ohio Savings Bank v. 1&1 Internet, Inc. and David Rosenbaum, D2006‑0881 (WIPO September 15, 2006) stated, “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.” He also found that this “practice is sensible and has the benefit of trying to get notice of the proceeding to the party that is most affected by the proceeding.”
Holding by proxy “does not support a finding of ‘foul intent’,” CyBerCorp Holdings, Inc. v. Jay Allman, FA 0403000244090 (Nat. Arb. Forum May 14, 2004). However, Panels have been inconsistent on the issue. For example, in Countrywide Financial Corporation, Inc. and Countrywide Home Loans, Inc. v. Marc Bohleren, D2005–0248 (WIPO June 9, 2005), a proceeding in which Respondent defaulted the Panel held that “by operating through a Whois Agent, the Respondent took deliberate steps to hide its true identity so as to make impossible for third parties any direct communication with it, which behavior has been found to constitute evidence of bad faith within the meaning of the Policy,” citing Consitex S.A., Lanificio Ermenegildo Zegna & Figli S.p.A., Hermenegildo Zegna Corporation v. LionHeart securities Corp., D2003‑0285 (WIPO May 15, 2003). The Bank of America case cited above supports this view. Nevertheless, as shown by the result in Divex, bad faith is not proved by simply hiding one's identity, as opposed, for example, providing false and misleading contact information to the registrar, even if it may be one of the factors to be taken into account in deciding whether the complainant has satisfied its duel burden under ¶4(a)(iii).