[CCWG-AcctWS2.Jurisdiction.Questionnaire] CCWG-Accountability Work Stream 2 Issues Jurisdiction Questionnaire Responses

[Winterfeldt, Brian J.]

To Whom It May Concern:

We write to provide responses on behalf of Mayer Brown LLP to the ICANN CCWG-Accountability Work Stream 2 Issues Jurisdiction Questionnaire.  Please find our responses below.

1.   Has your business, your privacy or your ability to use or purchase domain name-related services been affected by ICANN's jurisdiction* in any way?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents.  Please note that “affected” may refer to positive and/or negative effects.

Mayer Brown LLP represents various clients including brand owners, registrants, registry operators and registrars.  The identity of these clients, where not already a matter of public record, is subject to attorney-client confidentiality.  These parties have generally been affected by ICANN’s jurisdiction, primarily the prescription of jurisdiction and venue in Los Angeles County, California.  We support such jurisdiction and venue in these contexts.

Otherwise, ICANN’s jurisdiction has not negatively affected our clients’ businesses, or their ability to purchase or use domain name services.  Overall, we strongly favor keeping ICANN incorporated and headquartered in California, as agreed upon during CCWG-Accountability Work Stream 1.

2.   Has ICANN's jurisdiction* affected any dispute resolution process or litigation related to domain names you have been involved in?
If the answer is Yes, please describe specific cases, situations or incidents, including the date, the parties involved, and links to any relevant documents.  Please note that “affected” may refer to positive and/or negative effects.
ICANN’s jurisdiction in California has at times partially informed the development of persuasive legal arguments we have made on behalf of our clients in various dispute resolution processes related to domain names, including UDRP proceedings and new gTLD program objection proceedings, particularly reliance on U.S. and California jurisprudence and legislation.  Nevertheless, as ICANN is a global multi-stakeholder community, we strive to support our legal arguments with persuasive surveys of international legal norms.  For example, UDRP complaints we file routinely include evidence of trademark rights in the jurisdiction of the Respondent.  And, as another example, string confusion objections and responses we have filed on behalf of our clients routinely sought to present a representative survey of national intellectual property laws defining confusing similarity.
None of these disputes involved ICANN directly as a party.  However, we strongly favor keeping ICANN incorporated and headquartered in California, as agreed upon during CCWG-Accountability Work Stream 1.
3.   Do you have copies of and/or links to any verifiable reports of experiences of other parties that would be responsive to the questions above?  If the answer is yes, please provide these copies and/or links.

No.  We do not see the probative value of this inquiry, which attempts to garner information where survey respondents have no actual or direct knowledge.

4 a.  Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction?* If so, please provide documentation.

No, we are not aware of any instances where ICANN has been unable to pursue its Mission because of its jurisdiction.

b.  Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.

For all of the reasons and rationale expressed as part of the Work Stream 1 consensus building process, we do not believe any alternative jurisdiction would provide any greater ability for ICANN to pursue its Mission.
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We appreciate the CCWG-Accountability and ICANN’s consideration of these responses.

Best regards,

Brian

Brian J. Winterfeldt
Co-Head of Global Brand Management and Internet Practice
Mayer Brown LLP
bwinterfeldt at mayerbrown.com<mailto:bwinterfeldt at mayerbrown.com>
1999 K Street, NW
Washington, DC  20006-1101
202.263.3284 direct dial
202.830.0330 fax

1221 Avenue of the Americas
New York, New York  10020-1001
212.506.2345 direct dial




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