[Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4

Wed Jul 19 14:16:09 UTC 2017

George:

As we prepare for this week's call, I wanted to address your concern that I was citing unnamed attorneys for the proposition that, if an IGO successfully asserted an immunity defense today in a judicial appeal brought by a domain registrant following an adverse UDRP decision the dismissal of the court case would result in the release of the hold on the UDRP decision and the subsequent extinguishment or transfer of the domain at issue. I was by no means trying to pad this conclusion by the fact that I had also conferred on this matter with some colleagues who engage in UDRP practice (generally for registrants, not complainants), but I simply don't feel that I have the right to name these people to this list. That said, we had a dialogue on this matter during our June 15th meeting and both Petter and Paul Keating concurred with that conclusion (see transcript of audio and chat below).

A look at the text of the UDRP leads to the same conclusion as well:

https://www.icann.org/resources/pages/policy-2012-02-25-en

k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4<https://www.icann.org/resources/pages/policy-2012-02-25-en#4> shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii)<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#1mutualjurisdiction> and 3(b)(xiii)<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name.

So dismissal of the litigation based on an IGO's raising of an immunity defense - which Prof. Swaine believed was a potential outcome in at least some jurisdictions - would lead to a reinstatement and execution of the original UDRP decision. That is why I believe that the Option 2 we have been discussing, by assuring domain registrants of at least a right to arbitration in this scenario under the law and procedural rules that was the basis for the judicial appeal, is more advantageous for the registrant than the current rule, and strikes a good balance between assuring a meaningful right of appeal while leaving decisions on IGO immunity to the courts.

Finally, in regard to the language of the Tucows agreement that you cited, that is of course between the registrar and its registrant customer and does not bind an IGO complainant.

Best regards, Philip

https://community.icann.org/display/gnsoicrpmpdp/2017-06-15+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms+Working+Group?preview=/66078536/66081886/transcript-igo-ingo-crp-access-15jun17-en.pdf

Phil Corwin:

Yes, thank you; Phil for the record.

As we discuss Option 1 and Option 2, given the fact that this working group

has been at this for quite a long time; I believe we're

-

are we at three years

now? But

I know we've been going quite a while on this and we'd like to see

something concrete result from our work because our work is the first step in

a process, and whatever we finally report out will go to Council for its review

and hopefully its approval.

And we're all aware that the original request of the IGO's forth for a process

that did not find support in this working group

--

which was for a totally

separate DRP not related to the UDRP which it wasn't clear from their ask,

but it seemed like it would

be based both on Trademark law

--

Trademark law

rights

--

and other rights stemming from their special status

--

claim special

status which would/could lead to broader rights then complainants in a

UDRP

So in that context and in anticipation of questions or objections to either of

these options, I think we just should openly explore them. And in that context,

I want to raise two issues that concern me

--

and I've pursued to some extent.

The first is we haven't changed

--

and Option 1 in no way would change

--

the

current UDRP. Option 2 would change it slightly for very narrow circumstance

that may or may not ever occur.

But Option 1 would say that if the IGO successfully asserts an

immunity

defense in a courtroom

and

,

as we know from Professor Swain,

the things

that are in our report and in Option 1 are nothing new.

An IGO today could file

through an agent, assignee or licensee that will need error and paramount to

do that. We're simply noting that they have that possibly to take that path if

they wish to further insulate their claim and jurisdictional immunity.

And under Professor Swain's memo, if an IGO brought an UDRP today and if

the domain name registrant lost and decided to file a judicial appeal, the IGO

today would be free to assert immunity.

And per Professor Swain's memo,

they might succeed in that argument notwithstanding the Mutual Jurisdiction

Clause

or the argument might fail.

In my own mind, you know, if immunity is a defense, it would be whether they

had waived that defense by agreeing to mutual jurisdiction.

So that leaves to

-

I've engaged with a number of UDRP panelists and other

attorneys who notice the (unintelligible) and said if today an IGO asserted

successfully asserted immunity

--

if there was a judicial appeal from a UDRP

decision

--

and if the court granted that immunity, what would happen  the

underlying UDRP decision. And a number of them have said, "Well, it would

be reinstated and the domain would be transferred."

So I don't know what the answer is, but I think if that's a possibility, we'd be

changing that outcome with Option 1

The other concern that I think will come up with Option 1 is that our whole

approach up to now has been to say we're not going to have ICANN grant

IGO's immunity in advance of judicial determination. If that situation ever

arises, it's up to the judge.

But the import of Option 1 is essentially to tell the IGO, "Well, your free to

assert your immunity, but if you're successful in that claim, the cybersquatting

that found by the panel

--

you know, and the panel could be wrong,

but in many cases, they're right in the defining of cybersquatting

--

will be

permitted to continue."

So I'd like a little more discussion on those two points of what would happen

if our working group didn't exist

and a scenario arose today where an IGO

brought a UDRP

--

registrant appealed under a national law, IGO

successfully asserted immunity

--

what would happen today to the underlying

UDRP

decision

, and is Option 1 consistent with our kind of hands

-

off

approach where we're saying, "We're not going to have ICANN interfere with

any determination on the immunity issue; we're going to leave that to the

judges and national courts."

So I'll stop there. I hope that's helpful and leads to some beneficial

discussion.

Thank you.

Petter Rindforth:

Thanks Phil. And as Paul also correctly noted in the Chat, if there is no court

action, domain (unintelligible) because that's the decision that is made. And

there's a limited time where the losing party can take the case to

a court and

be handled there.

But there's only a very limited time to act. And if nothing happens within that

time, the decision

--

the written decision

--

will be the one that is the legal

issue. So transfer or whatever, the decision (unintelligible)

https://community.icann.org/display/gnsoicrpmpdp/2017-06-15+IGO-INGO+Access+to+Curative+Rights+Protection+Mechanisms+Working+Group?preview=/66078536/66081515/AC%20Chat%20IGO%20INGO%20CRP%2015%20June%202017.pdf

Paul Keating:Easy.  Domain is transferred based on the UDRP.

Paul Keating:THis is the same that would occur if the case were dismissed for any reason.

Philip Corwin:I greatly respect Paul's opinion on UDRP matters, and his

response is consistent with that

of other UDRP panelists and litigating attorneys that I have discussed this with.

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 George Kirikos
Sent: Tuesday, June 27, 2017 10:06 AM
To: gnso-igo-ingo-crp at icann.org
Subject: Re: [Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4

Hello,

On Tue, Jun 27, 2017 at 9:38 AM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:

> It has been the unanimous view of all attorneys we have consulted ...

A similar statement was made during today's telephone call. This PDP, and ICANN processes in general, mandate maximum transparency. Citing unnamed attorneys who are not "on the record" within the working group, and who've not been formally engaged, who may not be independent, nor had their work (or questions/scenarios) reviewed by the working group does not meet the transparency requirements of our PDP. If I did the same, I'd be criticized, and rightly so, as it would be improper.

Why should anyone defer to one's "unnamed supporters" or "unnamed experts" who are not part of this PDP, and ignore the interests of domain name registrants who are far closer to "unanimous" in wanting to preserve their rights to court action, to the maximum extent, and not have the UDRP tamper with those rights? The price of using the UDRP, as has been stated before, is that one consents to the the supremacy of the courts, if either party wishes to take it there. If one wants an Option #5, eliminate the UDRP, and force everyone to use the court system. If you want to reinvent the UDRP, you'd go back to what was intended for today -- price of using the "new UDRP" is that the court system remains supreme.

Let me give a scenario that some might have not contemplated: IGO has court case set aside due to immunity, according to a judge, and the domain name transfers to the IGO (i.e. UDRP is followed). However, now the IGO is subject to the *registration agreement* of that registrar, and the former registrant (loser of the UDRP) then *immediately* files a court case following the court case. For Tucows/OpenSRS, the registration agreement states:

http://www.loffs.com/Domains/Legal/master.html

"11. .... If Registrant or Registrant's domain name becomes the subject of litigation, Tucows may deposit control of Registrant's domain name record into the registry of the judicial body by supplying a party with a registrar certificate."

"29. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS."

"Irrevocably consent to the jurisdiction" seems like a further and valid waiver of immunity, to me, perhaps *even stronger* than the mutual jurisdiction clause of the UDRP.

Anyhow, I look forward to the further productive discussions to try to achieve a full consensus.

Sincerely,

George Kirikos

416-588-0269

http://www.leap.com/

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