Complainant argues that two panelists are biased and should not hear the case. The panel disagrees.
Last week a World Intellectual Property Organization panel handed down a decision in a UDRP brought against ParkRoyal.com.
The panel found in favor of of respondent Vertical Axis, which was represented by ESQwire. But the decision itself was only a sideshow to a battle over panelists.
In a three person panel, both the complainant and respondent get to suggest three panelists. WIPO then selects one from each list. Each party also plays a role in selecting the presiding panelist.
Naturally, when it comes to the initial suggestions, each party selects panelists that they believe will be more favorable to their position. The complainant is going to name panelists who lean toward complainants or have decided on issues in previous cases relevant to the instant case. The respondent has a similar mindset and looks for panelists that it believes will give it a fair chance, not the other way around.
In the ParkRoyal.com case, the complainant suggested that two of the respondent’s panelist suggestions were inherently biased in favor of the respondent. The panel found otherwise, and it went through a lengthy discussion of the complainant’s challenge.
The panel acknowledged the the three person panel process was designed to allow each party to make a contribution to the selection of one panel member and the third member of the panel. It determined that there could be a challenge to a clear case of bias, but that the complainant had not made a good case that either of the panelists should be dismissed for clear bias. Merely ruling in a certain way in previous cases is not a sign of bias.
In this case, one panelist recused himself rather than have to defend his record. That’s an unfortunate result.
This case will undoubtedly be looked to as precedent in future cases in which complainants try to get panelists dismissed.