“The possibility that a domain name might be registered in the name of a proxy was not contemplated when the UDRP was drafted,” Jay Leno v. St. Kitts Registry, Domain Names Administration, D2009-0571 (WIPO July 1, 2009). This has “led to difficulties for filing parties.” The matter has been explored in a number of earlier cases and their conclusions are summed up in Jay Leno and Research In Motion Limited v. Privacy Locked LLC/Nat Collicot, D2009-0320 (WIPO May 8, 2009). The Panel in Research in Motion notes that

agreements between privacy services and their customers vary when it comes to UDRP complaints. Some privacy services unmask (or disclose) the customer (“underlying registrant”) on receipt of a warning letter from a complainant, thereby enabling the complainant to address a complaint to the underlying registrant. Some privacy services only unmask the underlying registrant following receipt of a complaint, or receipt of the Center’s request for registrar verification, thereby leading to a situation such as this one where the Center provides the registrar-confirmed registrant information to the complainant and invites an amendment to the complaint. Others, it appears, decline to unmask the underlying registrant at all.

The “difficulties” have to do with Rules 8(a) and 8(b) of the Rules of the Policy that prohibit transfer of Registration and Registrar during the pendency of the proceeding. Calls for guidance from ICANN have not (and probably will not) be answered. Rather, the answer will have to come from construction of the Policy. Quite simply, the problem is that when in response to the Provider’s request for verification the name of the beneficial owner is disclosed the Whois database will reflect a transfer from the proxy to the “underlying customer.” This transfer is technically prohibited even though it does not amount to cyberflyte.

One stab at construction came from the Panel in L’Oreal S.A. v. MUNHYUNJA, D2003-0585 (WIPO November 17, 2003):

The Oxford Paperback Dictionary (Oxford University Press 1983) defines “pending” when used as an adjective as “1. waiting to be decided or settled. 2. about to come into existence”. Hence the expression “during a pending administrative proceeding” can mean both (1) the period while waiting for the Panel to make a decision, which is the period after formal commencement of a proceeding but before the Panel has made its’ decision, and (2) the period when the proceeding is about to formally come into existence, which includes the period after first filing of a complaint but before the proceeding has formally commenced.

An administrative proceeding can thus be “pending” as soon as the complainant files the complaint and not necessarily only after the “commencement of the administrative proceeding” within the meaning of Paragraph 4(c) of the Rules.

This dealt with the lag between initiation and commencement of the proceedings. The Panel in Research in Motion Prior Panels identified three possible options when the beneficial owner is masked and its identity unknown at the initiation of the proceeding:

(1) Treat the underlying registrant as the respondent.
(2) Treat the privacy service as the respondent.
(3) Treat both the privacy service and the underlying registrant as respondents.

Options one and two are not without difficulty because they raise the transfer issue the answer to which is not expressly prescribed in the Rules although they have their adherents. The Jay Leno Panel prefers Option 2 (because the proxy is the registrant of record) and Research in Motion prefers Option 3 (for two reasons, first the “unmasking” would be treated not as a transfer but “simply the lifting of a veil” and second “[r]etaining the privacy service as a respondent obviates potential problems over the Mutual Jurisdiction clause.”