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.

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.

And so to BAA

Before the case had even reached WIPO though, Larkin was unhappy with the way BAA had approached the attempted acquistion of his domain.

He bought Gatwick.com eight years ago and was using it to host a business directory for the area of Surrey, south of London, most famous for its airport. He says he was making an income from his online efforts.

He told us he received an offer to purchase the domain by a company called Houxou, which said it wanted to use the domain in conjunction with Aviators.net - a UK internet service provider. Initially it offered £700. When Mr Larkin refused, this figure was increased gradually to £8,000 and finally to £15,000, he claims. Finally, Larkin suggested that he might rent the domain to Aviators.net for £100 a week.

He heard nothing back but then, he told us, an email from WIPO arrived "out of the blue" stating that BAA was disputing his ownership of Gatwick.com. Larkin prepared to fight the case as he had successfully two years earlier when he protected his domain "ikb.com" from a German bank. The resulting judgement in his favour is frequently used as part of WIPO "case law" by other Respondents.

When the case appeared to be getting out of control, however, he hired a specialist in internet law, Nick Lockett of DL Legal, to help him out. Almost immediately, Lockett told us, he found a "catalogue of dirty tricks".

A common trick by companies wanting a domain name is to offer money to the domain owner and then when he agrees to sell, to go to WIPO and inform the panellists that the domain was clearly registered in "bad faith" (one of the three conditions that have to be met for a domain to be handed over) because the person had offered to sell.

In this case, however, BAA used a third party - Houxou - and then claimed in its WIPO filings that the email Larkin had sent suggesting renting the domain was sent directly to BAA, Lockett told us. Larkin contends that he never knew Houxou was related to BAA and that he did not send that email to BAA.

Oops, I've made a slip. Twice

The situation is made all the more suspicious, we were told, by the fact that this email as submitted to WIPO was a photocopy of a printed-out version of the email. During photocopying, a piece of paper underneath the printout obscured the email's header (made clear by the lack of a second punch-hole). It was the only email in evidence to have lost its header. Mr Lockett told us: "It appears this is either a deliberately misleading or fraudulent piece of evidence."

Lockett quotes as another "dirty trick" that he received an email from BAA's lawyers as soon as he was hired by Larkin, pointing out that there may be a confusion of email addresses for his client. "We note that Mr Larkin and WIPO seem to be using different addresses for Mr Larkin's email correspondence," it read.

It turned out that BAA has been sending all relevant material in the case to WIPO and to Larkin (as the rules dictate) but using an invalid email address for Larkin - so he didn't receive any of it. The email address used was significantly different to Larkin's real address, and, Lockett contends, was an incomprehensible error for a high-powered legal company specialising in Internet law to make.

Larkin has a Hotmail email address. We won't give the real address, but assuming it was in the format "bob-larkin@hotmail.com", BAA had been forwarding all the case material to "bob-larkin.hotmail.inet@wipo.int".

Lockett also discovered that a WIPO case officer had informed BAA that it was using the wrong email address forLarkin, but it continued to send case material to the wrong address even after this had been pointed out. As Lockett told us: "There are a lot of excuses that strain credibility."

Another "dirty trick" was aimed at weakening Mr Larkin's case. When a case is filed with WIPO, the Complainant has to state that no legal proceedings have been started against the Respondent. This BAA duly did. But immediately after filing its WIPO papers, it filed a cease and desist order against the company hosting Gatwick.com ordering it to remove the site from the internet.

As such, when the WIPO panellists seek to review what use the domain was being put to, there is no site to review. Again, the fact that a domain is not being used adds weight to a Complainant's case under UDRP rules.

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:

1. List those that speak the language
2. From that list select those in the jurisdiction (useful for issues arising in that jurisdiction such as free speech (USA) or passing off (UK).
3. From that list select those considered to be experienced
4. Create draft list
5. 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. ®

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