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JAMS fails to shut down contractor’s website

Kenneth Flynn is no lawyer, but he’s not afraid to go toe to toe with them.

A construction company owner, Flynn recently found himself jousting with California attorneys representing Judicial Arbitration and Mediation Services Inc., better known as JAMS, in a European conflict resolution forum for online domain names.

OK, so “jousting” might be a stretch. It took Flynn all of four paragraphs to make his case to the World Intellectual Property Organization. And with that, the complaint that alleged Flynn had been disparaging JAMS was dismissed.

The dispute started when Flynn created a website, jamsarbitration.com, blasting the mediation firm and one of its neutrals, retired Judge John M. Xifaras.

Specifically, Flynn warns viewers of the page to “Beware and avoid JAMS Arbitration.” He calls Xifaras a rogue arbitrator and the “Patriarch of the Xifaras family of political hacks.” He further alleges that the New Bedford attorney violated the JAMS contract by failing to cite a single case in a decision that involved Flynn’s construction company in Charlestown, Mass.

Flynn, through the site, claims Xifaras “was not concerned with reaching a correct legal result. This was because he knew that an Appeals Court could not review his award. This allowed him to write an award that would be laughable.”

At the heart of the kerfuffle was a contract the Massachusetts Turnpike Authority had awarded to Flynn’s Park Place Development in late 1999. Within a year, the MTA terminated the contract because of what state officials said was Flynn’s failure to disclose a business he had once been affiliated with that had filed for bankruptcy.

Park Place challenged the Pike for pulling the rug out from underneath the project, and the matter was sent to JAMS for arbitration. There, Flynn apparently disagreed with Xifaras’ decision.

Flynn registered the domain name for his site on Feb. 12, 2009. JAMS sent Flynn a cease-and-desist letter in September of that year, which Flynn ignored.

This past February, JAMS filed a complaint with the World Intellectual Property Organization, a Switzerland-based United Nations agency dedicated to the use of intellectual property.

JAMS claimed Flynn was “improperly seeking to damage its business” and had used meta-tags to enhance the prominence of his site in search engines.

Rather than submit a formal response, Flynn fired off an email to the WIPO in which he argued he is “making a legitimate noncommercial and fair use of the domain name, without intent for commercial gain or to mislead or divert consumers or tarnish the trademark or service mark at issue.”

The complaint was promptly dismissed.

“I’m thrilled, absolutely,” Flynn says when asked about his recent win. “They [WIPO] were upholding the right to free speech.”

Of JAMS, he says, “I’m sure they gotta be mad as hell.”

Xifaras did not return a call seeking comment.

But Jay Welsh, the vice president and general counsel of JAMS, says his organization is reviewing the decision and “determining our next steps.”