Once a case is submitted to a Panel, it is either decided or terminated. If terminated it is either because one of the parties has commenced a civil action or by consent. Consent to transfer takes two forms: either 1) the respondent unilaterally agrees to relinquish its registration; or 2) the parties mutually agree that the disputed domain name should be transferred to complainant. Of these two form, a unilateral offer by the respondent consenting to domain name transfer to the complainant raises a challenging issue as to the respondent’s motivation and how to access it. Rule17(a) of the Rules of the Policy addresses only mutual agreement. It reads, “If, before the Panel's decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.”
The Panel in The Cartoon Network LP, LLLP v. Mike Morgan, 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.
Whether to accept respondent’s consent even in the face of the complainant’s refusal to stipulate depends upon the genuineness of the offer. 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,” citing Williams-Sonoma, Inc. d/b/a Pottery Barn v. EZ-Port, D2000-0207 (WIPO May 5, 2000). In both these cases, there was no credible basis for concluding that the consent was not made in good faith to resolve the dispute. Termination under these circumstances does not constitute an admission of bad faith. The consent in fact may imply a strong denial of any violation, “for example, where a domain name was registered in error.”
The result would be different if there were a credible basis for concluding that the consent is made to avoid a holding of bad faith. Indeed, for some respondents the purpose in consenting to transfer is to avoid a finding that it has violated the Policy. In this event, panelists view the offer more skeptically. For example, in Messe Frankfurt GmbH v. Texas International Property Associates, D2008-0375 (April 29, 2008) the Respondent had been found by prior Panels to be a serial cybersquatter in violation of ¶4(b) of the Policy with over a hundred claims against it. The Panel in rejecting the Respondent’s request to terminate the proceedings without a decision, stated:
[I]n cases of this type it would be contrary to the spirit and intent of the Policy for a party to use the expedient of offering to transfer the disputed domain name at the last minute, in order to avoid a decision on the merits and thereby minimize the risk of adverse findings/comments.
This conduct, the Panel stated, is particularly egregious
where that party appears to have done the same previously and where the purpose of the step appears to be to circumvent the Policy. In the instant case the Panel infers that the purpose of this strategy is not only to delay the inevitable... but also effectively to thwart the Policy (where patterns of questionable conduct have always been relevant) and that this is an abuse of process and a further indication of bad faith conduct.
This view has not met with universal approval. Panels in subsequent cases have split on the issue. In Almaden Valley Athletic Club v. Texas International Property Associates - NA NA, D2008-0600 (WIPO June 11. 2008) and Graebel Van Lines, Inc. v. Texas International Property Associates - NA NA., FA0805001195954 (Nat. Arb. Forum July 17, 2008) the Panels followed Messe, while in Dryvit Systems, Inc. v. Texas International Property Associates, D2008-0599 (WIPO June 17, 2008) the Panel did not and accepted the Respondent’s unilateral consent to transfer the domain name.