Why go to the trouble?
If Lockett's accusations are true - and he has put them all into a formal document sent to WIPO - why has BAA gone to such lengths to get hold of the domain?
The most simple answer is that it would not win the domain if the existing rules are applied correctly. BAA has no fixed rights over the term "Gatwick". Not only is it a generic term for an area of the UK, but BAA does not even posses the trademark for "Gatwick" - another company does.
Mr Larkin claims he was running a legitimate business on the site. It is unlikely therefore that unless WIPO could be persuaded he was in fact an abusive registrant, that the domain would be handed over.
Unfortunately there are plenty of precedents in domain disputes where if a Complainant can show the current owner does not have a legitimate right to the domain, it is handed over to the Complainant with almost no regard to the fact that there may be others that have a more legitimate right than the Complainant.
This is not the first time BAA has been caught up in controversy over a domain. It embarked on a legal fight against the owners of baa.com in 2000. The case was finally settled out of court when one of the owners declared he could not afford to spend the estimated extra £50,000 needed to defend it. The action cost BAA at least £200,000.
We asked BAA and its lawyers to respond to the allegations made by Larkin. We were told: "BAA's position is that it feels that it is not appropriate to comment whilst the UDRP procedure is ongoing."
The big questions
What the Gatwick.com case has highlighted is that not only are those taking place in domain dispute cases able to get away with gross distortions of the truth (and hence such behaviour is encouraged) but that the very process itself is flawed.
Lockett has some damning words for the process in its current form - and some simple corrective measures. "This system is a complete farce," he told us. "There are numerous defects in the rules. There is no right to reply, so you are not entitled to point out a lie. The entire process needs to be revisited. It needs wholescale reform if it is going to be credible."
As for the issue of legal proceedings prior to WIPO filings,Lockett says the solution is very simple - the parties should have to state that they will not bring or threaten any legal proceedings while the WIPO case continues and will immediately inform the arbitrator if they do.
He points out, as many have before, that WIPO has a commercial incentive to chose in favour of Complainants. The Complainant, under UDRP rules, is entitled to choose which arbitrator takes the case on. As such, it will chose the one that is most likely to rule in its favour. The arbitrator gets to keep whatever money it makes from such cases.
Lockett questions the creation of a body of WIPO "case law" built on previous decisions - many of which are flawed. "There is now a very complex body of case law, but there is no internal appeal process. You can't overturn previous decisions - some of which are poor and were made by panelists sitting by themselves." His solution is for WIPO to produce a set of new guidelines, based on recent decisions, at the end of each year.
The majority of arbitrators come from the intellectual property world, so there is immediately an inherent bias. Lockett argues that either domain arbitration centres become more like courts of law - something that would greatly increase costs - or that they only act in black and white cases. "They should say that if there is disputed evidence, they don't have the power to decide, and the case should go to court."
As for WIPO's continued secrecy into how it decides who will represent it as arbitrators and the process by which those people are chosen, Lockett and Larkin ask that a fair balance is struck between the Complainant and Respondent.
When pushed, WIPO informed Mr Lockett that its selection process for panellists was as follows:
- List those that speak the language
- From that list select those in the jurisdiction (useful for issues arising in that jurisdiction such as free speech (USA) or passing off (UK).
- From that list select those considered to be experienced
- Create draft list
- Check availability of top five and remove any who are not available
However, in that process exist two important omissions. Firstly, there is no requirement for the selection of be fair and balanced to both sides in the disputes, by whatever measure. And secondly, there is no formal mechanism to prevent a conflict of interests arising.
WIPO says in its own rules that: "Before making a panelist appointment, the Center checks with each prospective panelist whether there are any facts or circumstances, past or present, or that could arise in the foreseeable future, that might call in to question that person’s independence in the eyes of one or both of the parties in the administrative proceeding."
But that clearly hasn't happened in this case as not one but two panellists on two separate occasions have had substantial conflicts of interest.
It is not the first time that WIPO's opaque panellist picking has come under scrutiny. Previous studies have pointed out that those that chose for the Complainant a greater number of times are put forward more frequently by WIPO in new cases.
There was also the case last year when one of the more Respondent-friendly arbitrators, Milton Mueller - a highly respected member of the internet community - was removed from WIPO's list of panellists without any warning or explanation. Nevertheless, WIPO refuses to give any real insight into how panellists are chosen.
Lockett told us that he made several recommendations for procedural changes to WIPO: "I spoke to WIPO's counsel about suggested improvements in procedure and was met with the answer that WIPO could do that but their concern was to have a quick remedy. He left me with the clear opinion that WIPO are more concerned about speed than sustainable decisions."
With the internet becoming so fundamental, and with domains acting as real estate on the World Wide Web, it is ludicrous that a system so clearly and easily abused exists to decide ownership of a domain name. It needs reform and it needs it now. ®