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BAA accused in net 'dirty tricks' campaign
Lawyer calls for urgent domain dispute reform
Professor William Cornish of Cambridge University was the target of some ire when he chose to interpret the domain dispute rules (known as Uniform Domain-Name Dispute-Resolution Policy - UDRP) to mean that companies had a right to domain names that ended with "sucks" for example, www.microsoft-sucks.com.
His decision, hotly disputed at the time, has since be used as the basis of many other "sucks" domain decisions and effectively put an end to what many felt was a legitimate form of internet-based protest.
However,Cornish most controversially decided for singer Celine Dion and TV host Julie Brown in celinedion.com and juliebrown.com. Again, his decision is frequently used in current cases where a well-known person wants control of their domain namesake. In this case, however, the judgments themselves demonstrated such a one-sided review of the case that many questioned the neutrality of the panellist. Despite trademarks being the underpinning and entire point behind the UDRP rules, Professor Cornish decided to extend their definition to include a famous person's name.
If this questionable logic wasn't bad enough, the judgement text revealed that Cornish had simply copied and pasted his decision in Julie Brown's case into the judgement of Celine Dion. Double dates and peculiar spelling mistakes appeared to show that only a cursory review of the facts of the case has been given. We covered the saga in detail.
Cornish has been chosen by the Complainant at least four times in three-person panels and never by a Respondent.
Clive Thorne was a second name on the list. He was also at the centre of some controversy when he appeared to go against the very letter of the UDRP rules in the case of reg-vardy.com. Thorne invoked a clause that stated if the respondent had registered the domain "primarily for the purpose of disrupting the business on the complainant" it could be viewed as a bad faith registration.
However, the clause explicitly stated that it could only be used if the registrant was a competitor to the Complainant. In the case of reg-vardy.com, it was a disgruntled customer that had registered the name and not a competitor. Thorne chose to ignore this wording and, using the clause to explain his decision, found for the Complainant. We called it "a poor, flawed and sloppy decision".
Thorne has been chosen by a Complainant at least eight times and never by a Respondent.
Gordon Harris was the fourth member of the list. Harris created controversy the other way when in January 2001, as presiding panellist, he chose for the Respondent in the case of BruceSpringsteen.com. He and panellist Michael Froomkin followed the wording of the UDRP and concluded they had no choice but to rule against the US singer.
The decision was greeted with outrage by the intellectual property community and, in contrast to most WIPO previous rulings, is consistently ignored by panellists in current cases.
Since that decision, however, Harris has become a frequent first-choice by Complainants. Out of the last eight cases he has been involved with, seven of them were decided by a three-person panel and he was the Complainant's choice in each case (three were found for the Respondent). The one other case he acted as a single panellist and decided in the Complainant favour.
Finally, last on the list is Debrett Lyons. Lyons is the only panellist that can claim to be entirely neutral since he has been chosen neither by a Complainant or Respondent. In the nine cases that we know of, however, he has chosen for the Respondent only once - an above average choice in the Complainant's favour.
As such, out of the 40 WIPO-accredited experts for the UK (there are many more across the world), the organisation itself chose three panellists that are regularly chosen by Complainants and have all been at the centre of past controversies. A four had already been dismissed as a panellist due to conflict of interests. Leaving one.
Larkin and Lockett immediately requested that the list be redrawn. That request was refused. They requested that WIPO explain its decision-making process in selecting appropriate panellists for each case: it refused. When, finally, they made it clear they were prepared to serve a High Court injunction in order to force WIPO into explaning its approach, WIPO conceded to replace previously dismissed Isabel Davies.
It chose Matthew Harris - a lawyer who, according to WIPO's own profile [pdf], has acted for the Complainant, BAA, in a domain dispute in the English courts.
Lockett appealed again, and this time WIPO (still refusing to replace any of the other panellists) chose Clive Elliott. Elliott is a veteran abritrator, having taken on 57 cases at WIPO alone, and lives in New Zealand. Of those 57 cases, he has decided in the Complainant's favour in 46 of them - 81 per cent of the time.