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Recent Case Notes & Commentary

Consent to Transfer of a Domain Name is an Active Process and Must Be Followed Through

FORUM Claim Number: FA1911001870296

December 3rd 2019

Occasionally domain name transfers are resolved simply by the Respondent consenting to have the domain name transferred to the Complainant. This was the case in The Toronto-Dominion Bank v. Michael Roth but due to a technical error ostensibly on the part of the domain registrar, the process was made more difficult than it needed to be. Mr Roth claimed that he instructed the registrar to release the domain name to the Bank but for unknown reasons it never did. The lesson here is that if you are consenting to the transfer of your domain name, always follow up with the registrar to avoid accidentally becoming party to a dispute.

"Consenting to a transfer of a domain name should be treated as an active process"

Substantially there was no contest over the domain name and initially Mr Roth failed to respond in the matter at all. In an email he seemed to have previously consented to the transfer of the domain name upon request and therefore presumed there was no matter afoot. His mistake however, was that he did not reply to the initial cease and desist letter from the Bank to let them know of his consent to the transfer. If he had done so, the complaint would never have been brought. To avoid doubt and needless complication, consenting to a transfer of a domain name should be treated as an active process.

That is so, because the consent must be complete and unequivocal without any conditions attached. If there are conditions attached, panellists will often take the view that this is not a consent to the transfer and that the panellist should proceed with the complete analysis of the three elements under the UDRP. It is also said, in the same regard, that respondents might try to use the consent avenue to avoid have a finding made against them that they had acted in breach of the UDRP, which would look bad in later proceedings.

A Respondent who wants to consent to the transfer of a domain name must follow through and show that he or she has done everything that should be done and not left undone anything that should have been done, to make the consent to the transfer complete and unequivocal.

See here we have noted another case involving a similarly incomplete process of consent to the transfer.


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