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Lawyer calls for urgent domain dispute reform

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Analysis An attempt to take over the domain gatwick.com has sparked accusations of a dirty tricks campaign, bias at the very heart of the internet and a call for urgent reform of the international rules for domain disputes.

British software engineer Bob Larkin, who owns Gatwick.com, is at loggerheads with international airport group BAA, as well as the World Intellectual Property Organisation (WIPO) which is deciding on the case.

After weeks of what Larkin says is consistently unfair and biased behaviour on behalf of both organisations, he finally threatened to go to the UK High Court in order to receive a fair hearing.

WIPO is one of four organisations charged with deciding domain disputes across the globe. Larkin is furious, however, over what he sees as fundamental inconsistencies and biases at the very heart of the dispute process.

The core of the dispute concerns the panellists chosen for hearing the Gatwick.com case brought against him by BAA. Larkin believes he has a strong case and has accused BAA of attempted "reverse domain name hijacking" - where someone seeks to gain control of a domain despite knowing that they have no more legitimate right than the current owner. As such, Larkin has paid WIPO $2,000 to have his case heard by a three-person panel rather than the usual single panellist.

Under WIPO's rules, in a three-panellist situation, the Complainant (BAA) is entitled to chose one person from a list of WIPO-chosen and accredited experts, and the Respondent (Mr Larkin) chooses a second. Then, WIPO draws up a list of five other experts from which the the two parties agree to chose a third and presiding panellist. Since WIPO decisions are taken on a simple majority, the presiding panellist plays a crucial role in the final decision.

BAA's choice of panellist, Isabel Davies, was immediately objected to by Mr Larkin on the grounds that she teaches on the same university course as BAA's lawyer in the case, Stephen Bennett from top UK law firm Lovells. He succeeded in having Ms Davies removed for a conflict of interests.

A question of choice

However, despite this removal, Davies appeared for a second time in the WIPO-compiled list of five presiding panellists. Since Davies has only one previous domain dispute case for WIPO under her belt and presiding panellists are usually chosen for their experience, this was most unusual.

Larkin was dismayed and started investigating the credentials of the other panellists on the list. He claims that having reviewed the experts put forward and their previous decisions, that there is a clear bias against him as the Respondent and clear bias for BAA - the Complainant.

All panellists in the five-person list have found in the Complainant's favour an above average number of times, Larkin explains. But more than that, all but one have been selected by Complainants in three-panellist cases. In return, none of the panellists have ever been chosen by a Respondent for a three-person panel.

Since both sides in the dispute will always chose the panellist they believe is more likely to decide in their favour, the fact that all but one of the presiding panellists have been chosen by Complainants in the past (at least four times in each case) makes the list patently unfair, argues Mr Larkin's lawyer, Nick Lockett of DL Legal.

Two factors may the situation worse. One, WIPO remains unusually reticent about its panellist selection process, and has consistently refused to discuss its processes in any detail ever since it first started hearing domain dispute processes in 1999. Secondly, the panellists on Mr Larkin's list have made some highly contentious decisions in the past.

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