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 says 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, companies 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 acquired 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 because 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 because of several 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 large 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 should not change the analysis. To purchase a confusingly similar domain name just to park it constitutes bad faith registration and use.
Acro says
This fringe argument has been used before. If ICANN offers this option, there is nothing wrong with it. Apparently he’s trying to align his point of view on the case’s particulars with some type of justification without merit.
John Berryhill says
Once ICANN wraps up the “Privacy/Proxy Accreditation” working group, it would help to have an ICANN document that spells out clearly “here’s how these things are supposed to work”.
You can’t read the license plate on my car and look it up in a public database. I guess Lowry doesn’t believe I own it despite that fact.
You can form a Wyoming, Nevada or Delaware corporation and not disclose your identity AT ALL. So, according to Lowry, there are no ownership rights in those corporations.
It’s really bizarre.
Steve says
Exactly. With crazy logic like Houston’s the entire Canadian registry CIRA is used by,
“Only people with an intent to deceive conceal their identity,”
This guy is so delusional it’s scary.
Steve says
by default CIRA uses privacy protection on all individual registrations unless the registrant changes it.
It cuts down on spam.. Duh!!!!!
john says
wow. what recourse do we all (internet publishers, including donain investors) have to address ignorant panelists?
“Only people with an intent to deceive conceal their identity”
JZ says
another dummy who should be fired.
Aaron Strong says
The IRS agent I was forced to speak with concealed their identity. Is the IRS acting in bad faith?
John says
Did that really happen, Aaron? Unless something has changed, they don’t do that, would not do that, and can’t do that, so if it did happen you were almost certainly dealing with a fake and should report it to the IRS yourself. They have a criminal division to deal with things like that.
Aaron Strong says
John – Thank you!..It appears that it was an attempted scam…Thank you!
Nick says
Houston Putnam Lowry another corporate shill. So, the hijacking was denied from the other 2 panelist? I did a search and it still says pending.
Andrew Allemann says
They didn’t consider RDNH
onlinedomain says
I think that Nick means that every denied UDRP is a hijacking. And I agree. It is attempted theft.
Ian Ingram says
Regarding Houston Putnam’s “Only people with an intent to deceive conceal their identity”
Sure Whois privacy is used this way but that is a large generalization.
It’s also often used:
-For protection to keep solicitors away (web dev / seo/ need a similar domain / spammers, telemarketers etc.)
-To keep business intents private while a product or service is still in development.
-To keep additional domain registration costs down as domains get snapped up when things are made public by companies and premium domain prices may increase as well.
-etc.
Jane Doe says
Two reasons I use it…
1) Fight spam/phishing
2) protect myself from certain individuals I would rather not know where I am due to their abusive nature.
I find the first point very useful, I find the later vital to allowing me to have a life.
onlinedomain says
Houston Putnam Lowry does his job. To find bad faith even if there is none.
There are a lot of panelists that do that because they want to be included in 3 member panels. Selected by the Complainant of course.
The problem is that ICANN and the centers allow this BS. Every panelist that pulls an argument out of his ass like this should be excluded from the list.
There should be some ground rules like renewal is not bad faith, privacy is not faith, etc.
This will continue. You haven’t seen nothing yet.
Nick says
I agree, it seems like Houston Putnam Lowry is being a shill for repeat business
Gabriel says
This Lowry guy. . . what drugs is he on?
John says
Houston Putnam Lowry seems to always find way to manipulate the policy to find a way to let these companies steal domains. Maybe Houston Putnam Lowry wants some business from these companies in the future, so Houston Putnam Lowry helps them try to steal them.
John Berryhill says
Full decision here:
http://www.adrforum.com/domaindecisions/1684372.htm
Andrew Allemann says
added to post
John says
Domain Dunce award winner of the month, Andrew?
What a bad and shallow-thinking analysis. He should hang out with Georgia state representative that that said Guam could capsize :
https://youtu.be/cesSRfXqS1Q
Nuttall says
Houston Putnam Lowry was on the panel regarding the AustinPain.com UDRP case.
UDRP panel gets AustinPain.com decision wrong
http://www.domainnamewire.com/2014/03/20/udrp-panel-gets-austinpain-com-decision-wrong
The domain owner is to be applauded to have the courage to fight the confiscation panelists’ wrongful decision and contest their decision and win.
Company pays $25k to resolve lawsuit stemming from UDRP
http://www.domainnamewire.com/2014/09/30/company-pays-25k-resolve-lawsuit
Somehow, don’t think that Houston Putnam Lowry spent any sleepless nights that his, and the other two panelists’, decision was reversed. He still got paid and will judge other National Arbitration Forum cases in the future. Nothing changes.
C.S. Watch says
When we talk about UDRP cronyism, and the inexcusable failure of panelists to redress the incorrect jurisprudence of their grabby cronies, we, unfortunately, are talking about grabby cronies like Houston Putnam Lowry.
From his instant dissent, on privacy protection: “Only people with an intent to deceive conceal their identity, which is the very definition of bad faith.” Was this juvenile and ill-informed hyperbole really written by someone empowered to dispense with assets valued at up to 35M USD? Regrettably, yes.
1. The Issue of Personal Risk
HoustonPutnamLowry.com is Lowry’s personal property, owned since 2000. Yet it doesn’t show his personal address in CT in the Whois. Did he perceive a risk there? Have YOU had some wingnut who wants your domain name hammer on your bathroom window when you’re getting out of the shower? I have. This and similar has happened to most domainers ONE time, and then they set up privacy protection. Because we know that over the course of that jaunt to South America, 50 people with smartphones will see your name on your credit card or passport. Would you like to spend your last five seconds on earth cornered in an alley in Nairobi, pushing a million-dollar domain to someone’s account? (Hope they let you go after! #BetNot.) Dozens of valuable three-letter dotcoms were just stolen and ended up at eName in China. Have you ever had a Chinese national show up at your mail handler and refuse to leave until you phone him? I have. It’s great. What mental infant can’t comprehend the obvious risk that comes with assets this movable? It is paid ignorance.
2. The Intent to Deceive:
Houston Putnam Lowry touts Cambridge scarves on his homepage and his LinkedIn Education states the Hague Academy. Yet any ‘hep person’ can scan his resume and see that they’re looking at audit courses culled from three institutions over the course of about a year! If one has a JD from Spokane, one must just own it. Because otherwise, people may assume one ‘intends to deceive.’ Now, can one strip Lowry’s JD for that? Can one strip a 35M asset for that?
3. The ‘Very Definition of Bad Faith’
Panelists are bound to impartiality. According to Lowry’s website at UDRPATTY.COM:
‘Houston Putnam Lowry has acted as a UDRP Panelist (essentially a judge) since 2000…’
[Emphasis his.]
is your local district judge currently practicing at ‘UDRPATTY.COM?’ Lowry decided eight UDRPs in July, and eight UDRPs in August. That’s a 6-8000 USD per month income. And his UDRPATTY.COM doesn’t list any other practice areas besides ‘domain names and the UDRP.’ How’s that impartiality looking?
On a related note, If I had to scrape up mortgage and taxes on the 6000+ sqft pink formica and sheetrock banality I bought in 2016, I’d hustle to make myself attractive to complainants, too. http://www.connecticutforsale.com/hartford/avon/home/-I-deleted-the-rest-of-this-link-for-his-privacy-as-a-basic-human-courtesy.
4. The ‘Very Definition of Defiitions.’
Lowry calls himself the ‘webmaster’ of HoustonPutnamLowry.com. Seeing that page, it is clear that he is as comfortable overstepping the title ‘webmaster’ as he is overstepping the title of ‘judge.’ Lowry’s competency with the life-and-death issues of IT personal security peak at blue hyperlinks and dancing hamsters. And the jig is up.
‘The point of arbitration is for the parties to choose their arbitrators.’ –Houston Putnam Lowry
No statement could better illustrate why Lowry must be removed from UDRP panelist rosters.