Loopholes in the internet domain name dispute-resolution system are helping professional cybersquatters win cases, says one experienced mediator.
The warning is from Australian lawyer John Swinson, who sits on international dispute-resolution tribunals for Wipo, (World Intellectual Property Organisation).
Variations in legal philosophy and interpretation among individual mediators can lead to inconsistent results where factual matters are in dispute. It appears some adjudicators won't decide in favour of complainants unless they can resoundingly prove their cases, while others are less conservative in their attitudes.
Helping tilt the scales of justice further is the fact that cybersquatters are prone to telling porkies.
"If a cybersquatter is clever at spinning a convincing story that can't be disproved in the time available to the panel, some arbitrators will give him the benefit of the doubt," says Swinson.
Thus cybersquatters who learn the idiosyncrasies of the system can come out ahead by manufacturing a legitimate cover story for their activities. "Among cybersquatters, the smart guys for whom it is a business are surviving… they are getting away with things."
Swinson is one of more than 200 individuals — typically legal specialists with an interest in technology law — accredited as arbitrators and mediators by Wipo and other businesses that provide dispute-resolution services.
"My view is there are many people out there registering domain names improperly. You can manipulate the system as a cybersquatter; they have seen where the loopholes are and manipulate them," says Swinson.
"When there are two conflicting stories and it is hard to determine who is lying, a lot of judges will maintain the status quo and deny the complaint. So if a cybersquatter gets one of the judges to take the view it is all too difficult, he wins."
Disputes aren't dropping in frequency. Cases filed so far this year with Wipo alone are running slightly ahead of last year's tally of 1,841 in generic top-level domains such as .com.