Consequences of Withdrawing UDRP Complaint

Rule 17 of the Rules of the Policy provides instructions for terminating a proceeding after the file has been submitted to the Panel. Subparagraph (a) states that “[i]f, before the Panel’s decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.” Subparagraph (b) contemplates the happening of an intervening contingency that makes it either “unnecessary or impossible to continue the administrative proceeding for any reason,” in which event “the Panel shall terminate the administrative proceeding, unless a Party raises justifiable grounds for objection within a period of time to be determined by the Panel.” The Rule applies equally to complainants and respondents, but it is more typically the respondent who requests termination.

In practice there are two possibilities under (a), either the parties mutually “agree on a settlement” (which is the literal construction of the subparagraph) or the complainant objects but the Panel terminates the proceeding anyway because in his or her view (taking a phrase from subparagraph (b)) there is no “justifiable grounds for objection.” The Cartoon Network LP, LLLP v. Mike Morgan, D2005-1132 (WIPO January 5, 2006). As a general rule, complainant has little incentive to “agree on a settlement” once the dispute has been submitted (unless the evidence supports a paragraph 4(c) defense) because doing so rewards respondent who has held onto its income stream to the last second. Rather, the incentive is for a ruling on the merits. Where both parties consent to the transfer it would be inappropriate for the Panel to do otherwise than “simply make an order for the transfer of the domain name to Complainant.” Digg Inc. v. Damien Overeem, FA 836770 (Nat. Arb. Forum December 20, 2006). This is consistent with a general legal principle governing arbitrations as well as court proceedings. A Panel should not “issue a decision that would be either less than requested, or more than requested by the parties.” It “must recognize the common request of the two parties.” The Body Shop International plc v. Agri, Lacus, and Caelum LLC, FA 679564 (Nat. Arb. Forum May 25, 2006).

The less usual situation is presented in H. Pratt d/b/a Solar Mart v. Mushka, FA1202001429169 (Nat. Arb. Forum March 28, 2012) where Complainant attempted to withdraw its complaint after submission but before the Panel’s decision. The Respondent objected. Rule 17(a) applies and the Panel issued its decision denying the complaint. The National Arbitration Forum supplements Rule 17 by providing a fuller pallet of possibilities for Complainant. Withdrawal without prejudice is permitted before submission to Panel or receipt of response to the complaint. Withdrawal after submission and appearance is with prejudice unless respondent stipulates.

A similar factual matrix was presented in a WIPO proceeding, Comité Interprofessionnel du vin de Champagne v. Steven Vickers, DCO2011-0026 (WIPO June 21, 2011). Here, the Panel held that termination raises a fairness issue. Complainant requested permission to withdraw its complaint “at this stage” (after submission) but failed to explain what “at this stage” meant. “Did that mean that complainant was reserving the right to refile the Complaint, perhaps with extensive additional evidence, or possibly merely in the hope that a different panel would be appointed? In the Panel’s view, it would not be fair to the Respondent, which had been put to the expense and trouble of filing a substantial response, if it were obliged to go through that process again.”

The Panel in H. Pratt stated that it “believes that the Complainant’s attempt to withdraw the complaint is a clear expression of his lack of interest in the disputed domain name and the administrative proceeding’s outcome.” That is, at this stage of the proceedings, before a decision, withdrawal is acceptable without a formal stipulation signed by respondent because under the Nat. Arb. Forum Rules, 12(c) it is “with prejudice.”

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