7. Initial Comments on the Registrar’s Role in This Case
This is an unusual case in that the Respondent is the CEO of the Registrar and also is described as the “governor” and “head” of the Registrar’s subsidiary, Anonymize, which was used for a privacy shield. These relationships create an inherent conflict of interest since the Panel relies on the Registrar to provide accurate information in response to the verification request, but the Respondent, who also is the CEO of the Registrar, would have an interest in hiding accurate information about the ownership of the disputed domain name (not to mention other domain names it may acquire) in order to strengthen the Respondent’s arguments with respect to its purported legitimate interest and potential bad faith.
Those prospects of a conflict of interest are problematic in this case. The Registrar, in its verification, inaccurately claimed that Mr. Monster was the owner of the disputed domain name and had been the owner since 2000, long before the Complainant adopted its trademark. In its initial Response, the Respondent provided other information – that the owner of the disputed domain name was Anonymize (not Mr. Monster) and that Anonymize had owned the disputed domain name continuously since September 2020, before Mr. Lindell’s plan in March 2021 to use the disputed domain name for a competing social media service, but significantly after the initial creation date by some two decades. Either way, these inaccurate disclosures were to the Respondent’s benefit. If the Respondent had actually registered the disputed domain name in the year 2000 prior to the Complainant’s trademark rights (registered in 2018 and claiming first use in 2016), the Panel would have found an absence of bad faith registration. See
, e.g., WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“
WIPO Overview 3.0”), section 3.8. Similarly, if the Respondent had registered the disputed domain name prior to the announcement of Mr. Lindell’s venture, and had never transferred the disputed domain name to Mr. Lindell, then the Panel likely would find an absence of bad faith registration since the disputed domain name would have been registered without regard to Mr. Lindell’s arguably infringing plan. See generally
id., sections 3.1 and 3.2.
The information provided both by the Registrar and in the Response was materially inaccurate, and it was only after the Panel issued procedural orders seeking clarification that the Respondent corrected the record and admitted that Mr. Monster personally was the registrant but that he only acquired the disputed domain name in March 2021, after the Complainant acquired its trademark and after Mr. Lindell announced and then abandoned his plans. Even still, there remain unexplained inconsistencies in the documentary material submitted by the Respondent: the emails between the Registrar and Mr. Carter indicate that the seller of the disputed domain name on March 9, 2021 was Mr. Monster (not Mr. Vinkhona) and that there was no broker involved, but the internal escrow documentation the Respondent submitted states that Mr. Monster was the broker for Mr. Vinkhona.
This misconduct by the Respondent and by the Registrar is troubling. It is all the more troubling because it appears to have been designed to improve the Respondent’s prospects for success in this proceeding. It raises significant questions as to the propriety of a Registrar being allowed to buy and sell domain names for its own account (or the propriety of a Registrar’s subsidiaries, officers or employees to engage in domain name speculation). This is an issue that the Panel believes should be addressed by ICANN, and the Panel requests that the Center share this decision with ICANN so that ICANN may consider whether to impose restrictions on such behavior by registrars. See
, e.g., Registrar Accreditation Agreement, sections 3.7.9 (“Registrar shall abide by any ICANN adopted specifications or policies prohibiting or restricting warehousing of or speculation in domain names by registrars”) and section 1.3.2 (noting that ICANN may establish specifications and policies on “prohibitions on warehousing of or speculation in domain names by registries or registrars”).
The inaccurate disclosures in this case also call into question the certification in the Response, signed by the Respondent’s counsel, Daniel R. Price, “that the information contained in this Response is to the best of the Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.” The documentation that the Respondent eventually submitted with its second and third supplemental submissions directly contradicts the representations in the initial Response, which at minimum makes the Panel question Mr. Price’s due diligence in signing the certification.
The Complainant is not wrong to highlight these serious issues. They are not violations of the Federal Rules of Civil Procedure since, as the Complainant acknowledged, those rules apply in United States federal courts, not in a UDRP proceeding. But they do call into question the Respondent’s credibility. That said, the documentation attached to Mr. Monster’s declaration does appear to substantiate his explanation of the facts of this case.
If this proceeding were being held before a United States court, the court would have the inherent power, as a sanction, to rule for the Complainant in light of the Respondent’s serial misrepresentations. The Policy, however, does not give that power to a panel. Rather, the Panel only can rule for the Complainant if the Complainant satisfies the three elements of the Policy. The Panel turns to that analysis in the following three sections.
That's a good one. What could be worse? Entertain us all, please.?
