Rule 17 of the Rules of the Policy provides alternative instructions for terminating a proceeding: “(a) If, before the Panel’s decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.” Subparagraph (b) also provides alternative instructions: “If, before the Panel’s decision is made, it becomes [1] unnecessary or [2] impossible to continue the administrative proceeding for any reason, 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 parties in Victoria’s Secret Stores Brand Management, Inc. v. Siarhei Leonau, FA1106001393866 (Nat. Arb. Forum June 28, 2011) did not exactly “agree on a settlement” – in fact, explicit mutual agreement is rare – but the Panel held that “[b]ecause both Complainant and Respondent request the transfer of the disputed domain name to Complainant, the Panel must recognize the common request of the two parties.” There is a little fakery here, a blending of the two subparagraphs. If both parties want the same thing, then it is appropriate to forego the usual UDRP analysis. To invent an “agreement” is a convenient fiction when in fact it is only the respondent who consents. This may be the spirit of the Policy, but query the letter. Analysis has become “unnecessary” but not “impossible.” In any event, the Complainant did not in Victoria’s Secret (as has frequently happened) “raise justifiable grounds for objection.”
The Panel explains that this procedure has been adopted by a number of Panels including The Body Shop International plc v. Agri, Lacus, and Caelum LLC, FA 679564 (Nat. Arb. Forum May 26, 2006) in which the Panel made the following observation:
Consistent with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot issue a decision that would be either less than requested, or more than requested by the parties. Because both Complainant and Respondent request the transfer of the disputed domain name to Complainant.
The Panel in Victoria’s Secret “respectfully adopts the position.”
The contrast is with those cases in which the Complainant objects to the simple expedient of “simply mak[ing] an order for the transfer of the domain name to Complainant.” More typically the respondent pleads nolo contendere and offers unilaterally to relinquish its registration. This raises a challenging issue as to the respondent’s motivation and how to assess it. The Panel in The Cartoon Network LP, LLLP v. Mike Morga, D2005-1132 (WIPO January 5, 2006) identified at least three possible courses of action for the unilateral consent: “(i) to grant the relief requested by the complainant on the grounds of the respondent’s consent without reviewing the facts supporting the claim; (ii) to find that consent to transfer means that the three elements of Paragraph 4(a) of the Policy are deemed to be made out and thereby reach the conclusion that transfer should be ordered and (iii) to proceed to consider whether, on the evidence, the three elements of Paragraph 4(a) of the Policy are satisfied because the respondent’s offer to transfer is not an admission of the complainant’s right.”
There is good reason to proceed with the UDRP analysis without complainant’s express consent. In The Cartoon Network the Panel concluded that the Respondent’s offer was genuine and that such unilateral consent “provides a basis for an immediate order for transfer without consideration of the paragraph 4(a) elements.” Nevertheless, termination benefits the respondent because it relieves it of a finding of bad faith. A decision to terminate would be questionable where there is a credible basis for concluding that the consent is offered to avoid a holding of bad faith.