The owner of Gatwick.com, Bob Larkin, has successfully defended his domain against a determined effort by airport authority BAA to take it off his hands. Domain arbitrator WIPO decided that Larkin has a legitimate interest and right in the domain, and rejected BAA's complaint.
However, the decision by WIPO has again raised significant questions about how fair and balanced the domain arbitration process really is.
We reported in September that Larkin was alarmed at how the selection of panellists, chosen by WIPO, was - to his mind - stacked against him. Under WIPO rules, if the respondent (Larkin) or complainant (BAA) pays $2,000, they can have a three-person panel decide the case.
In that scenario, the respondent chooses one panellist, the complainant a second, and WIPO draws up a list of five other panellists from which the respondent and complainant agree on one, who becomes the presiding panellist. A majority verdict means that the choice of presiding panellist is vital.
However, the list as presented by WIPO contained a colleague of BAA's lawyer (which Larkin had already stopped acting as BAA's choice of panellist,citing a conflict of interests), three controversial and demonstrably pro-complainant panellists and only one seemingly neutral person.
When Larkin complained, the colleague of BAA's lawyer was removed but then replaced with another panellist who listed in his CV that he had previously worked for BAA. He was then replaced with yet another panellist and, at the time of our story, WIPO had refused to change any of the other panellists and equally refused to give any information with regard to its panellist selection process.
We note with interest then that the final presiding panellist - Sir Ian Barker - is an entirely new addition to the list. We also understand that three of the original panellists stepped down, although we have so far been unable to discern who they were or what reasons they gave for suddenly re-appraising their positions.
Is it possible that our article drew sufficient attention to the case that WIPO was forced to play fair? The article is mentioned in the decision itself, with BAA apparently trying to use it in its case against Larkin. These things are best kept out of the public eye is the implicit assumption. Larkin is clearly convinced that WIPO views it as such as well, telling us only that he has "no comment" on any of the matters resulting from the decision.
If all this behaviour wasn't peculiar enough, the resulting decision is little more than a whitewash over what Larkin's lawyer claimed amounted to a "dirty tricks campaign" by BAA.
Among allegations made against BAA were that it had:
- Attempted to trick Mr Larkin into selling the domain using a third party
- Lied in WIPO filings that Mr Larkin had been aware it was BAA offering money
- Deliberately distorted evidence given to WIPO to make its case appear stronger
- Misled WIPO into believing Mr Larkin had only owned the domain since 2000
- Misled WIPO with regard to its rights and trademark surrounding the name "Gatwick"
- Lied to WIPO about having not sent a "cease and desist" letter to Mr Larkin's ISP
The WIPO panel decided not to review any of the allegations, even complaining that Larkin's response to BAA's response - was too long.
"The Panel is in no position to determine the allegations of misconduct by the Complainant by way of tampering with documents. Such a determination could only be made after a hearing at which the adjudicator saw and heard witnesses. It is not necessary to address this question in view of the Panel’s ultimate decision," is how a worldwide organisation decides to deal with allegations that its own processes have been brought into disrepute.
Further down, the same issue pops up again: "The Panel has considered the disputed correspondence. In view of the ultimate decision made by the Panel, it is not considered necessary to rule on the host of pejorative allegations, particularly the alleged tampering. The Panel does emphasise the need for complete disclosure by both parties to an administrative proceeding."
Later on, it makes it clear that a company can start WIPO proceedings and then send a "cease and desist" letter to a site's ISP bringing the site down, without having to make this known to the WIPO panel: "The requirement to disclose other ‘legal proceedings’ in the Rules, must surely refer to actually commenced litigation in a Court or Tribunal and not just to lawyers’ letters which may never lead to litigation." It beggars belief that a panel of legal experts can't recognise the enormous impact that a threatening legal letter from a top legal firm will have on a case.
What of the lengthy and worrying fight over selecting impartial panellists? It can't have passed WIPO by that there is a basic flaw in its procedure: this demands immediate attention if its credibility is to be retained. "It is no business of this Panel to comment on the reasons for this delay and it declines to do so. There has been no challenge by either party to any of the members of the Panel ultimately appointed by the Center," reads the decision.
This faulty logic - that if it all worked out right in the end, we don't need to consider what went wrong on the way - is a favourite of politicians. In this case, the contentious "bad faith" area of the case where many of the allegations were made was overlooked altogether because a previous element had been proved: "It is not necessary for the Panel to consider the arguments concerning bad faith registration and use since the Complainant has failed on the second criterion," the decision states.
In an ironic twist, the Panel then rejected Mr Larkin's counterclaim that BAA has engaged in "reverse domain name hijacking" because it was "not in a position to make a definitive finding on the items of bad faith alleged by the Respondent". The reason it was not in that position was because it had decided not to put itself in that position.
To be fair to the Panel members, their stated concern was that to delve into the matter further would greatly complicate matters and require the need for further witnesses to be called. It suggested a law court would be more appropriate for such matters. However, it would be very easy to make the case that in this unusual circumstance, where the process itself was said to have been abused, that it was vital to send out a message demonstrating that process' integrity.
A message has been sent out. And it is that a company can play quick and fast with procedural rules, and escape action. By hoping to keep its own, significant, faults under wraps, WIPO has undermined its own position.
BAA's lawyers, Lovells, said: "Lovells has no comment on the gatwick.com decision." ®