[Gnso-igo-ingo-crp] The origins of how INGOs got into this process (as opposed to IGO)

Paul Keating paul at law.es
Thu Oct 30 09:29:07 UTC 2014 

Thank you Mary,

Having attended most of the call yesterday I am still bothered by the
apparent desire to treat organizations differently.

It seems to me that there is a single standing threshold to be met here for
any curative rights ­ namely a trademark.

Whether that mark exists as a function of registration under national law or
under some vague concept of common law (which the UDRP panels have applied
even as to complainants in civil law jurisdictions with no "common law"
trademark jurisprudence) makes little or no difference be cause the
existence of the trademark is the most basic of standing requirements.
Treaties are not a separate form of law as treaties only have meaning as
adopted by the national laws of those States who are signatories to the
treaty.  In short there is no "international executive or legislative
branch".  Thus, any protection granted by treaty must be in turn founded in
the national laws of the signing states.  Thus, bits of the Paris Convention
is included as part of the Lanham Act.

If a complainant (whether an IGO, INGO, or any other person or entity)
cannot establish this threshold then there should be no further discussion.
To hold otherwise means that we are now embarking on creating a new curative
rights mechanism with a new standing criteria.  This would be highly
problematic for the reasons we have all discussed and I do not believe doing
so would be consistent with any mandate received.

So, it seems to me we can logically deal with each type of person/entity
under the same standing requirement. We have no need to discriminate here.

This leaves us with two subsequent issues to face ­ immunity and costs.

IMMUNITY.  As I noted in an earlier email, immunity is not absolute and a
waiver in one instance is not a waiver for all instances.  Thus, a State is
immune unless it is engaging in activities not relevant to governance (e.g.
Airlines).  The government loses its immunity as to matters concerning the
operation of the airline but not otherwise.  In this case, the issue is
registration of the domain name.   The question is by whom.

Registration by INGO/IGO, etc. In this case the complainant has already
agreed to the traditional RA which incorporates the UDRP and other
provisions.   I would argue that the act of registration already waived
immunity issues at least to the extent concerning the contractual
relationship (with the registrar).  As far as any curative rights
proceeding, that would automatically occur as a matter of law when the
IGO/INGO filed a complaint and selected the Mutual Jurisdiction.  However,
that wavier occurred ONLY with respect to the nature of the action ­ a
dispute over a domain.  Courts are intelligent enough to see through an
attempt to expand liability beyond that point.  So, I really do not see this
as a huge issue warranting a separate process.  And, if it were, it could be
aided by either amending the RULES of procedure clarifying that by
consenting the the MJ, the consent is only as to the issues pertaining to
domain name registration.  This would not require changes to the the UDRP
itself.

Registration by third party (protective rights of IGO/INGO). In the case in
which a third party registers a domain the IGO/INGO believes to be
infringing, existing mechanisms are sufficient.  The IGO/INGO can
participate with TMCH to the extent it otherwise qualifies.  Again, if it
holds no trademark rights, it has no standing any any curative rights
mechanism.  I see no reason to allow them special treatment to receive
notice when they cannot do anything about the registration.  Thus, if they
qualify they can have appropriate notice and determine whether or not to
file a claim using existing curative rights mechanisms.

COSTS.    Someone has to pay for the process.  Just because entities do good
things does not remove them from economic reality.  Nor does it give us the
right to impose a "tax" on someone else to cover the costs that the IGO/INGO
does not want to (or perhaps even cannot) pay.  I am not expecting any of
the ADR providers to jump up an volunteer ­ even WIPO which itself is an IGO
who one would think should assist its "brethren".  This leaves ICANN or the
respondent.  ICANN is a doubtful funding agent as it sets a very dangerous
precedent for them.   Again, the respondent should not be made to pay this
amount and even if we attempted to impose it upon registrants they could
easily escape it by registering their domains for 10 years prior to the
effective date of any change (remember we are able only to impose this "new"
system as a matter of contract via the RAA and the RA.   So this returns us
to the point that regardless of their good deeds, unless an IGO or INGO can
get the law firm to donate time and filing fees, it simply cannot afford to
take advantage of the process.  This is nothing new and both claimants and
defendants (even those with VERY good claims) are regularly denied access to
the wheels of justice.


So, I return again to my original point which is why distinguish?  It makes
no sense unless we are embarking on the establishment of a new standing
requirement.  I have not heard any consensus views in favor of such a
process.  Hence the "consensus" to differentiate makes little sense from a
logical perspective and will only make further work for someone down the
road, potentially leading to inconsistencies that we will all regret.


Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

 

THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN
INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE.  THE
INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM
IT IS ADDRESSED.  IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF
PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO  PLEASE DELETE THE
EMAIL AND ANY ATTACHMENTS.

 

Circular 230 Disclosure: To assure compliance with Treasury Department rules
governing tax practice, we hereby inform you that any advice contained
herein (including in any attachment) (1) was not written or intended to be
used, and cannot be used, by you or any taxpayer for the purpose of avoiding
any penalties that may be imposed on you or any taxpayer and (2) may not be
used or referred to by you or any other person in connection with promoting,
marketing or recommending to another person any transaction or matter
addressed herein.

 

NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN
ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS
FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT,
WHICH THIS IS NOT.  IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED
HEREIN SHALL CONSTITUTE LEGAL ADVICE
 

From:  Mary Wong <mary.wong at icann.org>
Date:  Wednesday, October 29, 2014 11:40 PM
Cc:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into this
process (as opposed to IGO)

> Dear all,
> 
> As noted on the WG call today, the consideration of INGO identifiers for
> additional/amended curative rights protection was supported by multiple GNSO
> constituencies during the prior PDP Working Group consensus process. As George
> noted in his original email (below), the primary rationale seems to have been
> that put forward by an NCSG representative; in some constituencies such
> support also saw some opposition (but not sufficient to overturn the final
> consensus conclusion).
> 
> As such, staff recommends that Stakeholder Group and Constituency
> representatives on this WG whose respective groups supported the inclusion and
> equivalent treatment of INGOs as for IGOs check back with those groups on the
> emerging consensus within this WG that INGOs be dropped from further
> consideration in this PDP. Please circulate your groups¹ respective agreement
> or disagreement via email as soon as possible so that this WG can finalize its
> consideration of this question.
> 
> In relation to the Red Cross movement, staff recommends that this WG consider
> whether, in light of their protection under international treaties and
> multiple national laws, they ­ and for the same reason the International
> Olympic Committee ­ can be considered separately from the other INGOs who do
> not have the same extent of legal protections (as noted several times by the
> GAC). 
> 
> To assist your review of this last point as well as for your convenient
> reference, staff has compiled the attached document which has the language
> excerpts from recent, relevant GAC Communiques that relate to IGO and Red
> Cross curative rights protections.
> 
> Thanks and cheers
> Mary
> 
> Mary Wong
> Senior Policy Director
> Internet Corporation for Assigned Names & Numbers (ICANN)
> Telephone: +1 603 574 4892
> Email: mary.wong at icann.org
> 
> 
> 
> 
> 
> From:  David Cake <dave at difference.com.au>
> Date:  Wednesday, October 29, 2014 at 3:07 AM
> To:  "petter.rindforth at fenixlegal.eu" <petter.rindforth at fenixlegal.eu>
> Cc:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Subject:  Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into this
> process (as opposed to IGO)
> 
>> I am OK with including the Red Cross, but based on the special case of the
>> protection given to their identifiers under the Geneva Convention and
>> associated national laws, rather than simply because it is an INGO.
>> 
>> I am not sure if those identifiers are relevant to this WG, but I'd rather
>> err on the side of caution at this stage.
>> 
>> The Red Cross themselves seem unhappy with their consideration by this WG so
>> far, but I think rather because of dissatisfaction with the approach taken so
>> far rather than because they do not want curative rights mechanisms.
>> 
>> It may be best to leave the question open for the moment, until the issue can
>> be addressed specifically, but in any case I think the inclusion of the ICRC
>> should be considered separately to the issue of INGOs in general.
>> 
>> Regards 
>> 
>> David
>> 
>> On 29 Oct 2014, at 8:41 am, Petter Rindforth <petter.rindforth at fenixlegal.eu>
>> wrote:
>> 
>>> I agree with this conclusion.
>>> 
>>> The only question I have is if Red Cross in this respect shall be included,
>>> or if we shall and can proceed only with clear IGO's.
>>> 
>>> The latter would be the most clear way to deal with our task, and it is also
>>> more easy to create a special dispute resolution policy for IGO's only (as
>>> it seems what we shall focus on now, rather than amendments of URS and/or
>>> UDRP).
>>> 
>>> Looking forward to dicuss this further with you all tomorrow (or later on
>>> today, Oct 29).
>>> 
>>> Best,
>>> Petter
>>> 
>>> -- 
>>> Petter Rindforth, LL M
>>> 
>>> Fenix Legal KB 
>>> Stureplan 4c, 4tr
>>> 114 35 Stockholm
>>> Sweden 
>>> Fax: +46(0)8-4631010
>>> Direct phone: +46(0)702-369360
>>> E-mail: petter.rindforth at fenixlegal.eu
>>> www.fenixlegal.eu <http://www.fenixlegal.eu>
>>> 
>>> 
>>> NOTICE 
>>> This e-mail message is intended solely for the individual or individuals to
>>> whom it is addressed. It may contain confidential attorney-client privileged
>>> information and attorney work product. If the reader of this message is not
>>> the intended recipient, you are requested not to read, copy or distribute it
>>> or any of the information it contains. Please delete it immediately and
>>> notify us by return e-mail.
>>> Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu>
>>> Thank you
>>> 
>>> 
>>> 28 oktober 2014, Phil Corwin <psc at vlaw-dc.com> skrev:
>>>> 
>>>> As co-Chair I see a consensus forming.
>>>> 
>>>> We can discuss and decide on tomorrow's call.
>>>> 
>>>> 
>>>> 
>>>> Philip S. Corwin, Founding Principal
>>>> Virtualaw LLC
>>>> 1155 F Street, NW
>>>> Suite 1050
>>>> Washington, DC 20004
>>>> 202-559-8597/Direct
>>>> 202-559-8750/Fax
>>>> 202-255-6172/cell
>>>> 
>>>> Twitter: @VlawDC
>>>>  
>>>> "Luck is the residue of design" -- Branch Rickey
>>>> 
>>>> 
>>>> -----Original Message-----
>>>> From: gnso-igo-ingo-crp-bounces at icann.org
>>>> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of David Cake
>>>> Sent: Monday, October 27, 2014 11:27 PM
>>>> To: Jim Bikoff
>>>> Cc: gnso-igo-ingo-crp at icann.org
>>>> Subject: Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into this
>>>> process (as opposed to IGO)
>>>> 
>>>> I agree with Kathy, Osvaldo, Jim.
>>>> Unless there is a clear demonstration of a separate legal status for INGOs
>>>> that was not addressed in previous WGs, we should drop it.
>>>> 
>>>> Regards
>>>> 
>>>> David
>>>> 
>>>> On 28 Oct 2014, at 12:00 am, Jim Bikoff <jbikoff at sgbdc.com> wrote:
>>>> 
>>>>> I agree.
>>>>> 
>>>>> Jim
>>>>> 
>>>>> James L. Bikoff
>>>>> Silverberg, Goldman & Bikoff, LLP
>>>>> 1101 30th Street, NW
>>>>> Suite 120
>>>>> Washington, DC 20007
>>>>> Tel: 202-944-3303
>>>>> Fax: 202-944-3306
>>>>> jbikoff at sgbdc.com
>>>>> 
>>>>> 
>>>>> -----Original Message-----
>>>>> From: Kathryn Kleiman [mailto:kleiman at fhhlaw.com]
>>>>> Sent: Monday, October 27, 2014 11:43 AM
>>>>> To: Jim Bikoff; Paul Keating
>>>>> Cc: gnso-igo-ingo-crp at icann.org
>>>>> Subject: RE: [Gnso-igo-ingo-crp] The origins of how INGOs got into
>>>>> this process (as opposed to IGO)
>>>>> 
>>>>>>> It is my opinion that we should focus on the IGOs and consider that the
>>>>>>> measures approved by the GNSO Council regarding the INGOs are
>>>>>>> sufficient.
>>>>>>> Best regards,
>>>>>>> Osvaldo Novoa
>>>>> 
>>>>> I agree with Osvaldo Novoa and Jim Bikoff on this - I think we should
>>>>> focus on IGOs and not INGOs. For if we address IGO and INGOs, then NGOs
>>>>> will want to be involved. Since it is a very loose area of existing
>>>>> protections, I recommend we stay with those of the clearest provable
>>>>> protections (and determining what the means) - IGOs.
>>>>> Best,
>>>>> Kathy
>>>>> 
>>>>> -----Original Message-----
>>>>> From: gnso-igo-ingo-crp-bounces at icann.org
>>>>> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Jim Bikoff
>>>>> Sent: Wednesday, October 15, 2014 8:12 PM
>>>>> To: Paul Keating
>>>>> Cc: gnso-igo-ingo-crp at icann.org
>>>>> Subject: Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into
>>>>> this process (as opposed to IGO)
>>>>> 
>>>>> We strongly agree with Osvaldo.
>>>>> 
>>>>> Jim Bikoff
>>>>> 
>>>>> Sent from my iPhone
>>>>> 
>>>>>> On Oct 15, 2014, at 4:33 PM, Paul Keating <paul at law.es> wrote:
>>>>>> 
>>>>>> Hi all,
>>>>>> 
>>>>>> I know I have been absent from the last several calls (family issues),
>>>>>> however, I feel that we should address both IGOs and INGOs. If we don't
>>>>>> we run the risk of inconsistency and future conflict.
>>>>>> 
>>>>>> Regards,
>>>>>> 
>>>>>> Paul Keating
>>>>>> 
>>>>>>> On 15 Oct 2014, at 9:03 pm, Novoa, Osvaldo <onovoa at antel.com.uy> wrote:
>>>>>>> 
>>>>>>> I think that the INGOs were sufficiently considered in the first policy
>>>>>>> and hat is now been revised. The revision arises from a request by the
>>>>>>> GAC, through the NGPC, to modify the decisions with regards to the IGOs
>>>>>>> acronyms and some on the Red Cross.
>>>>>>> It is my opinion that we should focus on the IGOs and consider that the
>>>>>>> measures approved by the GNSO Council regarding the INGOs are
>>>>>>> sufficient.
>>>>>>> Best regards,
>>>>>>> Osvaldo Novoa
>>>>>>> 
>>>>>>> 
>>>>>>> El 15/10/2014, a las 11:33, George Kirikos <icann at leap.com> escribió:
>>>>>>> 
>>>>>>> Hi folks,
>>>>>>> 
>>>>>>> During today's conference call, the topic of how INGOs got into
>>>>>>> this process was raised. Researching the mailing list of the prior
>>>>>>> working group, I believe the origin was the message at:
>>>>>>> 
>>>>>>> http://forum.icann.org/lists/gnso-igo-ingo/msg00885.html
>>>>>>> 
>>>>>>> where one of the participants put forward the idea that:
>>>>>>> 
>>>>>>> "Accreditation by ECOSOC is equivalent to the IGO treaty
>>>>>>> requirements and stands in fair stead to business oriented trademarks"
>>>>>>> 
>>>>>>> which, as Kristine noted in the chatroom during the call (I don't
>>>>>>> think the transcript is available yet, but will be) is probably not
>>>>>>> correct. i.e. her exact words were "I rather suspect it's much
>>>>>>> harder to get included in a treaty than to get on the ECOSOC list..."
>>>>>>> 
>>>>>>> I agree with Kristine.
>>>>>>> 
>>>>>>> Anyhow, I thought it would be good to capture this "history", in
>>>>>>> case we want to revisit this so-called "rationale" for adding INGOs.
>>>>>>> 
>>>>>>> Sincerely,
>>>>>>> 
>>>>>>> George Kirikos
>>>>>>> 416-588-0269
>>>>>>> http://www.leap.com/
>>>>>>> _______________________________________________
>>>>>>> Gnso-igo-ingo-crp mailing list
>>>>>>> Gnso-igo-ingo-crp at icann.org
>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>>>> 
>>>>>>> El presente correo y cualquier posible archivo adjunto está dirigido
>>>>>>> únicamente al destinatario del mensaje y contiene información que
>>>>>>> puede ser confidencial. Si Ud. no es el destinatario correcto por
>>>>>>> favor notifique al remitente respondiendo anexando este mensaje y
>>>>>>> elimine inmediatamente el e-mail y los posibles archivos adjuntos al
>>>>>>> mismo de su sistema. Está prohibida cualquier utilización, difusión
>>>>>>> o copia de este e-mail por cualquier persona o entidad que no sean
>>>>>>> las específicas destinatarias del mensaje. ANTEL no acepta ninguna
>>>>>>> responsabilidad con respecto a cualquier comunicación que haya sido
>>>>>>> emitida incumpliendo nuestra Política de Seguridad de la Información
>>>>>>> 
>>>>>>> 
>>>>>>> This e-mail and any attachment is confidential and is intended solely
>>>>>>> for the addressee(s). If you are not intended recipient please inform
>>>>>>> the sender immediately, answering this e-mail and delete it as well as
>>>>>>> the attached files. Any use, circulation or copy of this e-mail by any
>>>>>>> person or entity that is not the specific addressee(s) is prohibited.
>>>>>>> ANTEL is not responsible for any communication emitted without
>>>>>>> respecting our Information Security Policy.
>>>>>>> _______________________________________________
>>>>>>> Gnso-igo-ingo-crp mailing list
>>>>>>> Gnso-igo-ingo-crp at icann.org
>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>>> _______________________________________________
>>>>>> Gnso-igo-ingo-crp mailing list
>>>>>> Gnso-igo-ingo-crp at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>> _______________________________________________
>>>>> Gnso-igo-ingo-crp mailing list
>>>>> Gnso-igo-ingo-crp at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>>> _______________________________________________
>>>>> Gnso-igo-ingo-crp mailing list
>>>>> Gnso-igo-ingo-crp at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>> 
>>>> 
>>>> -----
>>>> No virus found in this message.
>>>> Checked by AVG - www.avg.com <http://www.avg.com/>
>>>> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14
>>>> _______________________________________________
>>>> Gnso-igo-ingo-crp mailing list
>>>> Gnso-igo-ingo-crp at icann.org
>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>> _______________________________________________
>>> Gnso-igo-ingo-crp mailing list
>>> Gnso-igo-ingo-crp at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>> 
> _______________________________________________ Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20141030/8a5ec8d6/attachment-0001.html>

More information about the Gnso-igo-ingo-crp mailing list