guide Complaint for 2 domains consolidated in 1 UDRP where owners are not linked

googli said:

There is a UDRP complaint against 2 domains (consolidated in a single case). Both the domains are at different registrars and have different owners.

But both have same nameservers as they both are parked at PC.

One of the domains is behind a third party whois privacy service. So the complainant says they have the same owner as they have same nameservers and similar website (parking page).

One of the respondent replied to the center (ADR) mentioning that owners are not related. Center says that panelist will decide on it.

Best way to defend it? Isn't is necessary to file different complaints if the owners are not related? Please advise.

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I assume the panelists will start with the name with the known owner and at the same time request info from registrar regarding the true owner of the other name. In case it is different person/entity, they'll proceed with one and advice the complainant to start different udrp for that one. If it turns out to be the same/related, they'll proceed with it as one case.

Third party privacy service is used here which is independent of the registrar.

Recons.Com said:

I assume the panelists will start with the name with the known owner and at the same time request info from registrar regarding the true owner of the other name. In case it is different person/entity, they'll proceed with one and advice the complainant to start different udrp for that one. If it turns out to be the same/related, they'll proceed with it as one case.

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googli said:

Third party privacy service is used here which is independent of the registrar.

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I assume they'd have to comply and provide the true owner info.

Recons.Com said:

I assume they'd have to comply and provide the true owner info.

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The third party privacy provider doesn't "have to" do anything, since they aren't a party to the registration contract which makes the UDRP operative.

Registrar-operated privacy service will typically be removed within 24 hours of receiving the notice from the UDRP provider that a proceeding was filed. The first thing the provider does in the process is to notify the registrar to lock the name and confirm the registrant identity. If the other name is not yet updated, it's not going to be. There is no communication interface from the UDRP provider to the third party privacy provider.

If one of the domain names is defensible and owned by someone who thinks they have a defense, then they should simply proceed with the defense of that name, and point out that they have nothing to do with the other one. This kind of thing - that a hosting provider will have the same nameservers for 10's of thousands of names - needs to be explained in detail to UDRP panelists since, in general, the panelists have no idea how any of this works.

jberryhill said:

The third party privacy provider doesn't "have to" do anything, since they aren't a party to the registration contract which makes the UDRP operative.

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But they are the listed registrant and the agreement with the registrar that implements the UDRP usually applies to the registrant. If you look at a whois record you cannot necessarily tell the registrant is a privacy provider unless it says so in their name or you have some additional information.

consumers said:

But they are the listed registrant and the agreement with the registrar that implements the UDRP usually applies to the registrant. If you look at a whois record you cannot necessarily tell the registrant is a privacy provider unless it says so in their name or you have some additional information.

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That is why there is an ongoing policy development process at ICANN on the subject of accrediting and regulating WHOIS privacy/proxy providers:

https://whois.icann.org/en/privacy-and-proxy-services

"ICANN plans to develop an accreditation program that will require privacy and proxy service providers to enter into a contract (an Accreditation Agreement) with ICANN. This contract means that ICANN’s Contractual Compliance department will have direct enforcement authority over accredited privacy and proxy service providers to ensure that these entities are compliant with the program’s requirements."

But right now, as a practical matter, there is no mechanism for a non-registrar privacy/proxy provider to update the WHOIS information once the registrar locks the name upon notice of a UDRP proceeding.

So, sure, the privacy service is the listed registrant and, sure, they'll be named as the respondent in the UDRP. They also don't care what happens to the name.

I was responding to the notion that the privacy service would "have to comply" with anything.

Thanks all for the informed replies.

The whois privacy service has been very helpful. They gave the email account (in the whois) to the respondent. Its through this account the respondent replied to center that owner of both the domains are different.
They say they are ready to write to center and provide details of the real registrant. Should they be told to do it?

John - regarding defending, what should the respondent focus on more? Countering the merits like bad faith etc. OR that separate complaint for each domain should be filed and this complaint as it is, should be dismissed on this ground.

The respondent is thinking NOT to touch the merits at all. Isn't the center and panelists all loosing money if separate complaints are not filed. Sensible thing to do?

googli said:

Countering the merits like bad faith etc. OR that separate complaint for each domain should be filed and this complaint as it is, should be dismissed on this ground.

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Simply filing a response with an objection on procedural grounds runs the risk that the Panel can do whatever it wants with it.

If the domain of interest is defensible, defend it, and make it clear that the registrant of the domain name you are defending has nothing to do with the other name. You might start out with a short "procedural objection" of some kind, but if you hang your hat on that alone, then you may not be given the opportunity to respond to the substance of the complaint in relation to the name of interest to you.

googli said:

They say they are ready to write to center and provide details of the real registrant. Should they be told to do it?

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That's up to them if they want to. If I were a panelist looking at this thing, then the extent of cooperation between the privacy service and the registrant who is saying "that name isn't mine" would be kind of interesting. If the point is that the registrant of the name of interest has nothing to do with the other name, then it's not particularly helpful if the privacy service for that other name is acting at the behest of the person saying "I don't have anything to do with them."

Let's say you were falsely accused of bank robbery. It's not going to help you if you contact the actual bank robbers and have them all say, "Oh, no, he didn't have anything to do with it" even if what they are saying is in fact true.

just a general question not related to this topic : If the domain owner agreed to transfer the domains i think there will be no problem will arise for trademark issue.