I. The UDRP legal grounds
Pursuant to Rule 15 of the UDRP Rules, the Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the UDRP Policy, the UDRP Rules, and any rules and principles of law that the Panel deems applicable.
Paragraph 4(a) of the UDRP Policy provides the following threshold for the Complainant to meet in order to divest the Respondent of the disputed domain name:
• The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
• The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
• The disputed domain name has been registered and is being used in bad faith.
It is therefore incumbent on the Complainant the onus of meeting the above threshold. The evidentiary standard under the UDRP proceedings is the balance of probabilities, which lays down the foundations for panels to determine each of the three Policy elements.
II. The Panel’s Procedural Order No. 1
On 15 April 2022, the Panel transmitted to the Parties the Procedural Order No. 1 (“PO1”), the content of which is copied below:
“The Panel has reviewed the available record and has made the following procedural order:
WHEREAS Rule 10 of the UDRP Rules affords a latitude of discretion for panels to conduct a UDRP proceeding as they see fit, so long as it conforms to the procedural legal framework;
WHEREAS the Respondent indicated in his communication of 8 April 2022 that “[...] the [disputed] domain [name] is blocked and I'm not willing to have it [the disputed domain name] again...”;
the Panel PROPOSES to issue a decision on the basis of the Respondent’s uncontentious approach to the present matter, and the Respondent’s overall disinterest in the disputed domain name. Consequently, the Panel is minded not to make determinations on any of the UDRP grounds substantively.
Would the Parties please advise whether they have any objection to the Panel proceeding on this basis and, if so, provide reasons for such objection, by no later than close of business (CET) on Wednesday 20 April 2022.”
By virtue of PO1, the Parties have therefore been informed that, subject to any objection/contrary proposal by any Party, it was the Panel’s intention to issue a decision in a rather abbreviated form (without a ruling on the UDRP legal grounds), in reliance upon the Respondent’s behaviour in the course of the proceedings, most notably the Respondent’s uncontentious approach to the present matter, and the Respondent’s overall disinterest in the disputed domain name.
On 19 April 2022, the Complainant sent a Nonstandard Communication in response to the PO1, by which the Complainant agreed with the procedure described in PO1.
As at the date of this decision, the Respondent has not provided any comments in response to PO1.
Therefore, neither Party have objected to the Panel proceeding on the basis set out in PO1.
III. Consent to Transfer
The Panel is given a latitude of discretion under Rule 10 (a) of the UDRP Rules to conduct a UDRP proceeding in such manner as it considers appropriate, so long as it conforms to the procedural legal framework.
The Panel notes that, while the Complainant has sought the transfer of the disputed domain name to it, the Respondent has not resisted the Complainant’s remedy nor has the Respondent shown any interest in maintaining the disputed domain name. On the contrary, the Respondent has stated that he is no longer interested in the disputed domain name.
The Panel also notes that neither Party suggested that the Panel should not proceed as proposed, i.e. to issue a decision based on the Respondent’s disinterest in the disputed domain name, and without determining the UDRP legal grounds.
In the matter of consent to transfer, the Panel alludes to paragraph 4.10 of the WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), according to which: “[…] Where parties to a UDRP proceeding have not been able to settle their dispute prior to the issuance of a panel decision using the “standard settlement process” described above, but where the respondent has nevertheless given its consent on the record to the transfer (or cancellation) remedy sought by the complainant, many panels will order the requested remedy solely on the basis of such consent. In such cases, the panel gives effect to an understood party agreement as to the disposition of their case (whether by virtue of deemed admission, or on a no-fault basis)…".
The Panel also acknowledges that there may be circumstances where panels, despite having had sight of the respondent’s consent to transfer or cancel a domain name, should instead proceed to making findings substantively, and some examples of these circumstances are set out in paragraph 4.10 of the WIPO Overview 3.0: “[…] Scenarios in which a panel may find it appropriate to do so include (i) where the panel finds a broader interest in recording a substantive decision on the merits – notably recalling UDRP paragraph 4(b)(ii) discussing a pattern of bad faith conduct, (ii) where while consenting to the requested remedy the respondent has expressly disclaimed any bad faith, (iii) where the complainant has not agreed to accept such consent and has expressed a preference for a recorded decision, (iv) where there is ambiguity as to the scope of the respondent’s consent, or (v) where the panel wishes to be certain that the complainant has shown that it possesses relevant trademark rights”.
The Panel is of the view that none of the above scenarios appear to be present in this case. Instead, the Panel considers that the issue that lies ahead of the Panel in this case concerns whether the Respondent’s approach toward the disputed domain name – uncontentious and acquiescent/accommodating – is material to a finding in favour of the Complainant and akin to a “summary judgment”.
The Panel has considered the available record and has interpreted the Respondent’s words “The domain is blocked and I'm not willing to have it again” and “I have nothing to do with it. I never used Eurex name for anything at all.” as an implied consent and a deemed agreement to transfer the disputed domain name to the Complainant on a “no-admission” basis.
Consequently, the Panel takes no stance and thus makes no finding as to whether the disputed domain name has or has not violated the Policy – and rather, the Panel orders the transfer of the disputed domain name to the Complainant premised on the Respondent’s implied consent to transfer.
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