Domain Name “Privacy-Guard” Denied

The Complainant, a provider of comprehensive marketing services and loyalty solutions to many of the largest and most respected companies in the world, owns two (USPTO) trademarks for PRIVACYGUARD and PRIVACY GUARD.COM.  The trademarks, registered in 1994 and 2002, respectively, are used in connection with services related to identity theft protection, providing consumer credit reports and credit monitoring.  The Respondent is the owner of the disputed domain name, www.privacyguard.net, first registered in 2002, which continuously has resolved to a web site featuring articles about privacy, identity theft, and consumer protection against fraud.  Interestingly, at the “About Privacy Guard.net” tab of the website associated with the disputed domain name, it is stated that “PrivacyGuard.net is purely an information web site about the privacy issues facing internet users.  This site does not sell services or products.  PrivacyGuard.net is not affiliated with or endorsed by privacyguard.com or the Trilegiant Corporation.”  (Complainant is affiliated with the Trilegiant Corporation).

The Complainant claimed, among other things, that Respondent was using “PrivacyGuard mark and Domain Name for the purpose of diverting Internet traffic to Respondent’s website for Respondent’s own financial gain through revenue for impressions and click-throughs.”   The Respondent did not reply to the Complainant’s contentions.

The decision is highlighted by a discussion over the nature of the disputed domain name, to wit, a web site with mixed commercial and non-commercial materials.  In the instant matter, the sole Panelist found that “nearly all of the website currently is and appears from the archives always to have been non-commercial” and that even though the site is “not entirely non-commercial”, the “non-commercial content is substantial” and “the site’s content does not indicate that the disputed domain name is being used to divert Complainant’s customers or to tarnish its trademarks.”  The Panel goes on to suggest that the “Ads by Google” with links to consumer credit services “could be incidental to the site’s informational purpose.”  However, despite a brief, but detailed discussion of the Respondent’s rights or legitimate interests in the disputed domain name, the Panel did not ultimately decide the issue, instead stating that “this is not a clear case of cybersquatting.”  Instead, the Panel denied the complaint due to a lack of a showing of bad-faith registration and went on to state that this dispute should be a “matter for the national courts, not the Panel.”