There are certainly cases where panelists have expressed the principle that where the respondent consents to transfer the panel need not and indeed should not go further, but should make the order and without reasons, other than the consent of the parties.
There are other cases, such as Graebel Van Lines, Inc. v. Texas International Property Associates – NA NA, (FA 1195954, July 17, 2008), where the Panel has said that: “…in the facts of this case, the Panel is of the view that the transfer of the disputed domain name deserves to be along with the findings in accordance with the Policy.”
Like all cases, it probably depends on the circumstances. It is not surprising, therefore, that two recent decisions have followed different practices. In a decision of my own, Montes de Piedad y Caja de Ahorros de Ronda, Cádiz, Almería, Málaga y Antequera v. Rare Names, Web Reg, (WIPO Case No. D2009-0292), I decided to proceed and make findings on each of the three elements.
I did this because the evidence submitted by the Respondent went;
"…beyond the stipulation for transfer of the domain name and ranges over many of the issues that are usually canvassed in UDRP proceedings and are directly relevant to the issues of whether the Respondent has a right or legitimate interest in the domain name and whether it registered and used the domain name in bad faith. In these circumstances, the Panel’s view is that the issues thus raised should be resolved and that the Complainant is entitled to a considered decision on each of them. The Panel will thus deal with the merits of the case as advanced in the Complaint and the Response.”
However, in the more recent decision in Google Inc. v. Herit Shah, (WIPO Case No. D2009-0405), the Panel followed the other and now more traditional course of simply making the order. In support of this course, the Panelist seems to have been considering making findings on the 3 elements of the Policy but decided not to do so. The Panelist was influenced in that decision by Paragraph 10 (c) of the Rules that exhorts the Panel to conduct the proceeding “with due expedition.” The obstacle to following this course seems to have been that the Respondent had taken two quite inconsistent attitudes towards the proceeding, but had finally consented to transfer. The Panel said that:
“… the inconsistency of the Respondent’s position alone does not in the Panel’s opinion justify a finding as to the Policy elements. The Panel takes the view in this case that the consent-to-transfer request replaces the need to assess the matter under the elements of the Policy.”
Accordingly the order was made without further discussion.
It seems fairly clear that if a Respondent wants to have an order for transfer, but nothing else on the record that might seem to be untoward or used against it in a later case, it is better to think first, be consistent, consent to the transfer and say nothing else, or as little as possible and not to enter into debate about the merits.
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