0.20: Consent to Transfer — UDRP Perspectives

0.20 Consent to Transfer

Once appointed, it is up to the Panel rather than the Provider to determine how to proceed in the event that a Respondent indicates its consent to a transfer. A Panel may decide to proceed with the case on the merits and issue a decision, or it may issue a decision transferring the domain name based upon the consent.

Where both parties affirmatively advise the Provider or the Panel that they are content with a transfer, a Panel need not necessarily proceed to examine the case on the merits. Instead, a Panel may issue a brief decision indicating that a transfer was consented to by both parties and thereby enabling the Provider to direct the registrar to transfer the domain name accordingly. Even when both parties have indicated their affirmative consent to transfer, a Panel still retains the discretion to proceed nonetheless with a decision on the merits having regard to the particular circumstances of the case. Generally however, a Panel should give effect to the joint stipulation of the parties regardless of whether an examination of the case on the merits would necessarily result in a transfer..

Panels must however, exercise caution in treating a Complaint as a de facto consent to transfer by the Complainant. Generally, a Complainant will file a Complaint with the expectation and indeed the entitlement, that the matter proceeds to a decision on the merits. Sometimes a Complainant will have a reason for wanting the matter to proceed regardless of a Respondent’s consent, such as where the Complainant wants to create a record of the Respondent’s bad faith or to obtain a finding of trademark rights, reputation, or some other element of its case. If a Panel has the consent of the Respondent but not the affirmative and express consent of the Complainant, Panels should consider asking the Complainant if it consents by way of a Procedural Order. This is to avoid an incorrect assumption that the Complainant will be agreeable to the transfer without a decision on the merits.

Likewise, where a Respondent has indicated that it consents to a transfer without having filed any Response, a Panel must exercise caution before proceeding on the merits based upon a Complainant’s withholding of consent to transfer. A Respondent may have, for example, consented to transfer on the assumption that a defense would therefore be unnecessary, and therefore proceeding on the merits could deprive the Respondent of an opportunity to respond on the merits. Nevertheless, a Respondent should not rely on its consent alone and should file a Response within the allotted time frame, if it believes it has a case to argue, as a Panel may decide to proceed on the merits after the Respondent having already defaulted. Where a Procedural Order is issued in order to invite a Complainant to indicate whether it also consents or not to the transfer, a Panel may use the opportunity to also afford the Respondent additional time to respond in the event that the Complainant does not consent, though the circumstances of the case will have to be taken into account by the Panel.

Where a Respondent consents but the matter proceeds to a decision on its merits in the absence of a Response, the absence of a Response may be taken into account but the Complainant still bears the burden of proving its case (see 0.8 – Inferences in No Response Cases).

Additional Information

Relevant Decisions

Leidos, Inc. v. Fatihia Bakari, Forum FA2504002150776 <leidos. shop>, Transfer

As a result, Panel is not solely charged with a clear duty to actuate an identical request to transfer, by both Complainant and Respondent. Furthermore, Respondent’s consent to transfer has the appearance of a cybersquatter who seeks to duck an adverse finding against her. Therefore, Panel will proceed to analyze the case, under the elements of the UDRP. See State Farm Mutual Automobile Insurance Company v. David Espinoza, FA 1958096 (Forum Aug. 31, 2021) (“Respondent claims that it attempted to “unlock” the disputed domain names so that Complainant could “claim” them. The Panel does not consider that a consent to transfer the disputed domain names to Complainant. The Panel also notes that the “consent-to-transfer” approach is one way for cybersquatters to avoid adverse findings against them. The Panel will decide this case on the merits.”).

Tennman Brands, LLC v. Som Helper, Aspiring Press Ltd, WIPO D2025-0451 <justintimberlaketours. com>, Transfer

The Panel decides to order the transfer of the disputed domain name to the Complainant based on this correspondence that the Respondent is consenting to the transfer of the disputed domain name to the Complainant. The Panel therefore adopts the approach set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.10…

Sub-Zero, Inc. v. Ivan Lopez / Marlon Barrios / fritzroy palmer, Forum FA2502002139015, <subzeroplus.com and others>, Transfer (as part of a split decision)

The Response submitted by Respondent Ivan Lopez for the <subzeroplus.com> domain name stated:

“The Respondent LOPEZ has informed Complainant’s counsel that he consents to the remedy requested by the Complainant and agrees to transfer the disputed domain name SUBZEROPLUS.COM to the Complainant or in the alternative cancel the disputed domain name, whichever the Complainant prefers”.

The Panel takes the Response to amount to Respondent’s consent to the transfer to Complainant of the <subzeroplus.com> domain name. Accordingly, the Panel considers it appropriate to order the transfer without embarking on the traditional Policy analysis.

The Founders Inc. v. Niels Schuhmacher, Zinari, WIPO D2024-5281 <anuaofficial.com>, Transfer

In this case, the Panel has decided to proceed to a substantive determination because: (i) the Panel finds a broader interest in recording a substantive decision on the merits – e.g., so that other future UDRP panels can take the matter into account when considering whether there is a pattern of bad faith conduct under 4(b) of the Policy; (ii) while consenting to the requested remedy, the Respondent has expressly disclaimed any bad faith and has imposed a condition that the transfer is in full and final settlement of all claims against the Respondent; and (iii) the Parties were unable to reach a settlement.

HDFC Bank Limited v. Domain Admin, Xedoc Holding SA, WIPO D2024-4351 <hdfcmutualfund. com>, 3-Member, Transfer

However, the Panel notes that the question of whether it will proceed, or not proceed, to a decision on the merits should not be viewed as a lever to be deployed by either party in settlement negotiations, this being a matter exclusively for the Panel’s discretion depending upon the circumstances of each individual case. In the present case, the Panel is satisfied that there is agreement between the Parties over the single aspect of which the Panel is seized, namely the remedy requested in the Complaint, which is the transfer of the disputed domain name… There are complex issues raised in the present case concerning how the disputed domain name comes to be held by the Respondent, involving at least a 15 year history, if not a history dating back to the original registration date of 2003, over two decades ago…

In these circumstances, the Panel orders transfer of the disputed domain name on the basis that the Respondent has unequivocally consented to the transfer of the disputed domain name, and that the Parties’ failure to conclude a settlement on wider matters by negotiation does not negate the effectiveness of the Respondent’s consent to transfer.

Inera AB v. Oskar Zajączkowski, WIPO D2024-0773 <inera. cloud>, Denied

Despite the Parties suspension of the proceeding for purposes of settlement negotiations, it appears that the Complainant ultimately requested reinstitution. Moreover, the Respondent’s communications (as quoted above) reflect remaining questions as to the settlement agreement between the Parties and its implications for the Respondent…

Beijing Dajia Internet Information Technology Co., Ltd. v. Felipe Martins, CAC-UDRP-106404 (2024) <kwaicreators. com>, Transfer

In accordance with Paragraph 10 of the Rules, the Panel possesses the discretion to administer the proceedings as it finds suitable. It is also acknowledged that panels are empowered to promptly issue a transfer order if the respondent has consented to the transfer of the contested domain name. Such consent from the respondent constitutes a valid and sufficient basis for an immediate transfer order, obviating the need for further examination of the elements outlined in Paragraph 4(a) of the Policy.

BHE GT&S v. SS Ruprai, Forum FA2306002048675 <hegts. com>, Denied

However, in some cases, despite a respondent’s consent, a panel may, in its discretion, still find it appropriate to proceed to a substantive decision on the merits. Scenarios in which a panel may find it appropriate to do so include where the respondent has disclaimed any bad faith and where there is question as to whether the complainant possesses relevant trademark rights…The instant Panel, in the exercise of its discretion, determines that, despite Respondent’s consent to transfer, it will proceed to consider the merits of the proceeding. The Panel notes that Respondent, while consenting to transfer, requests the Panel to deny the allegations in the Complaint and asserts that he registered the disputed domain name “in good faith for representation of Respondent’s business in world wide web.”

Nutramax Laboratories, Inc. v. Celine / NUTRAMAXWELL NETWORK TECHNOLOGY CO., LTD., Forum FA2207002004697 <nutramaxwell. com>, Denied

No Response was filed but after Respondent was notified of the Complaint, it wrote to Complainant stating that its products were not in the same industry as Complainant’s goods but that “for the sake of international peace and friendly settlement, we agree that we can propose the transfer of domain names (sic)…”.So far as the Panel is aware, Complainant did not respond to that offer and so it must be understood that Complainant prefers instead that the Policy be applied. The Panel has acted accordingly.

AMUNDI ASSET MANAGEMENT v. elliott arkin, CAC-UDRP-103112 (2020) <amundicoin. com>, et., Transfer

The Panel finds that the Respondent’s Nonstandard Communication, as reproduced above, constitutes a clear and unequivocal statement on the record that it consents to transfer of the disputed domain names to the Complainant. There is no apparent ambiguity within such communication, nor is there any indication on the present record that the Respondent has changed its mind or otherwise altered its position since said communication was filed. The Complainant has likewise confirmed its desire for such disposal rather than insisting upon a formal review of the merits. In these circumstances, there does not appear to be any benefit to proceeding to a substantive decision in this matter.

Ambit Holdings, L.L.C. v. Yuki Toyoshima / Toyoshima Yuki, Forum FA1705001729909 <ambitenergyjp. com>, 3-Member, Transfer

However, the Panel notes that Respondent agrees to transfer the domain name only if there is no cost to Respondent. So Respondent’s consent to transfer is conditioned on Complainant’s agreement to not further pursue its rights (outside the UDRP) where Respondent might incur costs or damages. At a minimum Respondent’s consent is ambiguous as to what it may or may not require in return for transferring the domain name. Since Complainant has not agreed to Respondent’s terms of transfer there is no unconditional consent on the part of Respondent and Respondent’s offer lapses. Therefore, the Panel decides the case on the merits because Respondent’s consent to transfer appears to be conditioned.

Digest Commentary

Digest Vol.5.3 <editorial-wsj. com>, Transfer

Digest Vol.4.22 <inera. cloud>, Denied

Digest Vol.3.31 <hegts. com>, Denied

Digest Vol.2.46 <subzerorepairsanantonio. com> and <elitesubzerorepairsanantonio. com>, Denied in part, Transfer in part

Digest Vol.2.43 <zerobouncerate. com>, Transfer

Digest Vol. 2.34 <nutramaxwell. com>, Denied