0.4 Withdrawal After a Response is Filed
Withdrawing a Complaint after a Response is filed is not always permitted. Complainants sometimes want to withdraw their Complaint after receiving a Response that disproves a Complainant’s allegations of cybersquatting and requests a finding that the Complaint was brought in bad faith, i.e. Reverse Domain Name Hijacking. Respondents in such circumstances may want to see a Complaint proceed to a final determination on the merits and particularly on the request for a finding of RDNH. A Respondent may also want the case to proceed to determination on the merits where a Complainant purports to withdraw its Complaint but “without prejudice” – meaning that a Complainant could simply refile the Complaint at a later date.
Permitting a Complainant to simply withdraw a Complaint in such circumstances puts the Respondent to considerable effort and expense and can encourage Complainants to try their luck with an abusive Complaint, knowing that if they are called out for it by a defending Respondent, that they can simply withdraw and even try again later with no repercussions.
Where a Complainant requests termination and the Respondent objects after filing its Response, that will generally be a sufficient reason for the Panel to proceed to a decision. In the same way as a Complainant is prima facie entitled to ask for a full decision so that its position is publicly vindicated, so is a Respondent. This is particularly so where the respondent has actively sought a finding of Reverse Domain Name Hijacking. Rule 10(b) of the Rules, namely that the Panel shall treat the parties with equality and ensure that each is given a fair opportunity to present its case supports this approach.
The case law is clear that where a Response has been filed, a Respondent may have a valid objection to a unilateral Complainant request to terminate the proceedings, particularly where; a) the Complainant has not asked for termination with prejudice; b) where the Respondent desires an adjudication on the merits; and/or c) where the Respondent has requested a finding of RDNH.
Additional Information
Relevant Decisions
SoletLuna Holdings, Inc., Lifewave, Inc. v. Bahl Co, WIPO D2024-5115 <silentnights.org>, Denied
The Panel denies Complainants’ request that it be allowed to withdraw its Complaint…The Panel concludes that termination is not appropriate here as Respondent objects to the dismissal on the grounds that it has already incurred considerable expense to prepare its response and wants a decision on the merits vindicating its rights and good faith and a ruling on its request for a finding of RDNH. The Panel finds that Respondent “raises justifiable grounds for objection” under Rules paragraph 17(b) and, accordingly, denies the request that the case be terminated.
UpTerra Corporation v. Maria Cypher, JustTheWord. com, WIPO D2024-3177, <upterra.com>, 3-member, Denied, RDNH
[Complainant’s request for withdrawal was heavily contested in filings between the parties in this dispute. The Panel chose to deny Complainant’s request for withdrawal and proceeded with issuing a decision in the dispute.]
Hale Law, P.A v. Roger Hale, WIPO D2023-0084, <gotohale.com>, Denied, RDNH
This Panel finds, as in Intellect Design, it is clear from the provisions of the Response, read with Respondent’s emails of March 21, 2023, that Respondent’s objections lie in the fact that Respondent has been put to the time and expense of preparing a Response to a Complaint which Respondent considers to be wholly lacking in merit, entitling Respondent to a finding of RDNH. Thus, terminating the proceedings at this stage would result in Complainant avoiding consideration of the merits in general and the issue of RDNH in particular, leaving Respondent in a disadvantaged position.
Fieldd Pty Ltd v. Jessica Duarte, WIPO D2022-4980, <fieldd.com>, 3-member, Denied with a dissenting opinion
Respondent promptly objected to termination of the proceeding on two grounds, namely that the Respondent seeks a decision on the merits to justify her expense and trouble in preparing a Response to what she views as an unfounded Complaint; and a finding under Paragraph 15(e) of the Rules.
The Panel considers these grounds for objection to be justifiable.
ITF v. Anonymize, Inc. / Domain Admin, Sébastien Schmitt, WIPO D2022-2196, <veripro.com>, 3-member, Denied, RDNH
The Panel considers that it is necessary to continue for two principal reasons. First, a dismissal of the Complaint without addressing the merits could leave the door open to the Complainant refiling the Complaint at some point in the future (subject to the considerations on refiling, see, section 4.18 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). It is notable that the Complainant did not request that the Complaint be terminated on a “with prejudice” basis, or subject to any other indication that it would not seek to refile this. Secondly, the Panel considers that it would be unfair to dismiss the Complaint without addressing the merits when the Respondent has already taken the time and trouble to submit a substantive Response, and particularly where it seeks a finding of Reverse Domain Name Hijacking (see the discussion in Thomas Wang v. Privacydotlink Customer 546843 / Blue Nova Inc., WIPO Case No. D2018-1316).