[Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Paul Keating
Paul at law.es
Thu Nov 16 16:51:17 UTC 2017
Phil,
Thanks for the email and sorry I will not be on the call. I have a client
call that conflicts.
I also understand you are opposed to the views expressed below but mainly
from a political viewpoint - that being that the ICANN board and GAC have
seemingly rejected the initial conclusions of the WG which was to make no
change. I believe your point is that we should come up with a political
compromise that could be accepted.
I respectfully disagree. We have done the work and we have obtained both
evidence and legal opinions that support that work. If ICANN does not wish
to accept the conclusions then that is not in-and-of-iteelf a reason to
change what we have originally concluded. ICANN can reject the result and
appoint a new WG to try to reach a different conclusion. They could act
independently and outside of the system. However, in any case:
The current situation remains in place, albeit absent the vitiating of the
UDRP decision.
The new WG would have to contend with our prior findings which would be
difficult to ignore
ICANN in acting alone would have to deal with the political issues that
come with such actions.
None of these should be our concern. We are tasked to examine the question
and reach a consensus based upon the evidence and the legal opinions we have
obtained. I do not believe that we have concluded that there is in fact a
problem (in fact all evidence seems to the contrary IGOs have used the
UDRP system as it is and there is no evidence that any have refrained from
taking curative steps because of the sovereign immunity issue). Given that
landscape it is improper IMHO to attempt to forge a political solution that
creates substantial burdens for domain name registrants, upsets their long
standing contractual rights and expectations, and creates yet another
curative rights mechanism.
Respectfully,
Paul Keating
From: Phil Corwin <psc at vlaw-dc.com>
Date: Thursday, November 16, 2017 at 5:36 PM
To: Paul Keating <paul at law.es>, Mary Wong <mary.wong at icann.org>,
"gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Cc: George Kirikos <george at loffs.com>, Philip Corwin <pcorwin at verisign.com>
Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working
Group meeting on Thursday 27 July
> Thanks for these thoughts, Paul
>
>
> Philip S. Corwin
>
> Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> 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
>
>
>
>
>
>
>
> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
> Paul Keating <Paul at law.es>
> Sent: Thursday, November 16, 2017 9:48 AM
> To: Mary Wong; gnso-igo-ingo-crp at icann.org
> Cc: George Kirikos
> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working
> Group meeting on Thursday 27 July
>
> All,
>
> There is an error in my email below. I wrote NGO when obviously I meant to
> reference IGOs. Please accept my apologies. Below is a corrected version
> that I would like to be included in the record in replacement of the original.
>
> Unfortunately I have been working on several large projects with clients in N.
> Amer. that have me working the phone most days from 5pm onwards. I have
> another call tonight so I will not be able to make it.
>
>
>
> I remain in favor of the following principals
>
>
>
> A. That by filing a UDRP complaint and agreeing to the ³Mutual
> Jurisdiction² the complainant (including the IGO) is waiving any objection to
> jurisdiction of the mutual jurisdiction.
>
>
>
> B. That by relying upon ³trademark² rights the complainant is by
> definition admitting to a commercial activity.
>
>
>
> C. There has been no evidence that IGOs have refrained from filing a
> UDRP because of their concerns over sovereign immunity.
>
>
>
> D. IGOs have in the past filed UDRPs evidence that the Mutual
> Jurisdiction provisions are not a limiting factor.
>
>
>
> * Assertions of phishing are merely that assertions. Assertions are not
> evidence.
>
>
>
> E. IGOs have alternative means to press their claims in a UDRP (or
> other legal) forum e.g. by assignment, etc.
>
>
>
> * Phishing and similar conduct can be appropriately prosecuted by law
> enforcement on behalf of the IGO.
>
>
>
> F. That if the IGO successfully asserts sovereign immunity in a post
> UDRP proceeding, the underlying UDRP decision should be vitiated.
>
>
>
> I have previously explained my additional rationale for this position, which
> is summarized here:
>
>
>
> 1. The UDRP was created as an streamlined administrative action in
> which:
>
>
>
> a. Notice and service of process was simplified no confirmation of notice
> is required.
>
> b. Filings are limited by page/word length.
>
> c. Evidence is severely limited in both form and quantity
>
> d. Assertions are often treated as evidence.
>
> e. There is no ³precedent² value and panelists are neither required nor
> inclined to follow relevant judicial decisions.
>
>
>
> 2. Section 4(k) was a material part of the bargain to permit a
> losing registrant the right to challenge the matter before a real court under
> real rules guarantying due process.
>
>
>
> 3. IGOs were certainly around at the time. Their input was heard.
> The UDRP was nevertheless established with the blessing of WIPO I might add.
>
>
>
> 4. There is no concrete way to establish what constitutes an IGO.
> IGOs come in a variety of shapes, sizes and qualities. Some are expressly not
> recognized by nation states. This in turn rises substantial issues of proof-
> which in the context of the limited administrative nature of the UDRP is
> inappropriate.
>
>
>
> 5. The UDRP is a contractually created process mandated by ICANN.
> All registrants must agree to application of the UDRP (or similar ADR) as a
> condition to registration. The UDRP Policy itself is not based upon
> recognized jurisprudence and is constantly shifting in meaning and scope as
> panelists seek to further streamline the process by largely ignoring the
> express language of the Policy. It also obligates the registrant to abide by
> an ever-changing landscape of trademarks (e.g. registration and use of a
> domain name in PPC followed by a later trademark registration would place the
> registrant at risk of losing the domain name because PPC use is rarely
> recognized and at least a minority of panelists continue to apply retroactive
> standards such as those found in MummyGold and other decisions attempting to
> retroactively apply Paragraph 2 to the Policy).
>
>
>
> 6. Trademark rights have been proscribed to a ³standing²
> requirement that presents no meaningful condition.
>
>
>
> 7. The requirement that the trademark be ³identical or confusingly
> similar² to the asserted trademark has been proscribed such that the condition
> is met whenever the trademark appears (in whole or significant part) in the
> domain name. Thus, for example, the rule supports finding that the domain
> name ³the.com² is confusingly similar to a trademark for ³Theatre² because the
> letter sequence ³the² appears in both.
>
>
>
> 8. Panelists rarely apply trademark analysis to the registrant¹s
> use of the domain name.
>
>
>
> UDRP Appeals Process.
>
>
>
> I have forwarded a prior email to Mr. Beckman and the WG on the subject of a
> UDRP appeal process organized and managed in a manner similar to the DRS
> process at Nominet. This is not a change of position as I favor an appeals
> process for all UDRP participants.
>
>
>
> As I stated in my communications, such an appeals process is not a replacement
> of Section 4(k) or the mutual jurisdiction certification. Instead it should
> be an economical means of correcting poorly reasoned decisions by
> inexperienced or biased panelists economical in that it limits those
> situations in which the parties must spend tens of thousands of dollars in
> litigation.
>
>
>
> I strongly disfavor any appeals process that would be unique to IGOs or that
> would remove the protections of Section 4(k) or the mutual jurisdictional
> certification.
>
>
>
>
> Sincerely,
>
> Paul Raynor Keating, Esq.
>
> Law.es <http://law.es/>
>
> <http://law.es/>
> Law.es <http://law.es/>
> law.es
> Law.es is a modern firm with the single goal of providing timely and targeted
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>
>
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>
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>
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>
> From: Paul Keating <paul at law.es>
> Date: Thursday, November 16, 2017 at 2:30 PM
> To: Mary Wong <mary.wong at icann.org>, "gnso-igo-ingo-crp at icann.org"
> <gnso-igo-ingo-crp at icann.org>
> Cc: George Kirikos <george at loffs.com>
> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working
> Group meeting on Thursday 27 July
>
>> Mary and fellow WG members,
>>
>>
>>
>> Unfortunately I have been working on several large projects with clients in
>> North America that have me working the phone most daystar 8am conference
>> calls (which for me being in Barcelona - begin at 5pm onwards. I have
>> another client call tonight so I will not be able to make the call today.
>>
>>
>>
>> Please make the following known to the group and retain it in the WG records
>>
>>
>>
>>
>>
>> I remain in favor of the following principals
>>
>>
>>
>> A. That by filing a UDRP complaint and agreeing to the ³Mutual
>> Jurisdiction² the complainant (including the NGO) is waiving any objection to
>> jurisdiction of the mutual jurisdiction.
>>
>>
>>
>> B. That by relying upon ³trademark² rights the complainant is by
>> definition admitting to a commercial activity.
>>
>>
>>
>> C. There has been no evidence that NGOs have refrained from filing
>> a UDRP because of their concerns over sovereign immunity.
>>
>>
>>
>> D. NGOs have in the past filed UDRPs evidence that the Mutual
>> Jurisdiction provisions are not a limiting factor.
>>
>>
>>
>> * Assertions of phishing are merely that assertions. Assertions are not
>> evidence.
>>
>>
>>
>> E. NGOs have alternative means to press their claims in a UDRP (or
>> other legal) forum e.g. by assignment, etc.
>>
>>
>>
>> * Phishing and similar conduct can be appropriately prosecuted by law
>> enforcement on behalf of the NGO.
>>
>>
>>
>> F. That if the NGO successfully asserts sovereign immunity in a
>> post UDRP proceeding, the underlying UDRP decision should be vitiated.
>>
>>
>>
>> I have previously explained my additional rationale for this position, which
>> is summarized here:
>>
>>
>>
>> 1. The UDRP was created as an streamlined administrative action in
>> which:
>>
>>
>>
>> a. Notice and service of process was simplified no confirmation of notice
>> is required.
>>
>> b. Filings are limited by page/word length.
>>
>> c. Evidence is severely limited in both form and quantity
>>
>> d. Assertions are often treated as evidence.
>>
>> e. There is no ³precedent² value and panelists are neither required nor
>> inclined to follow relevant judicial decisions.
>>
>>
>>
>> 2. Section 4(k) was a material part of the bargain to permit a
>> losing registrant the right to challenge the matter before a real court under
>> real rules guarantying due process.
>>
>>
>>
>> 3. NGOs were certainly around at the time. Their input was heard.
>> The UDRP was nevertheless established with the blessing of WIPO I might
>> add.
>>
>>
>>
>> 4. There is no concrete way to establish what constitutes an NGO.
>> NGOs come in a variety of shapes, sizes and qualities. Some are expressly
>> not recognized by nation states. This in turn rises substantial issues of
>> proof- which in the context of the limited administrative nature of the UDRP
>> is inappropriate.
>>
>>
>>
>> 5. The UDRP is a contractually created process mandated by ICANN.
>> All registrants must agree to application of the UDRP (or similar ADR) as a
>> condition to registration. The UDRP Policy itself is not based upon
>> recognized jurisprudence and is constantly shifting in meaning and scope as
>> panelists seek to further streamline the process by largely ignoring the
>> express language of the Policy. It also obligates the registrant to abide by
>> an ever-changing landscape of trademarks (e.g. registration and use of a
>> domain name in PPC followed by a later trademark registration would place the
>> registrant at risk of losing the domain name because PPC use is rarely
>> recognized and at least a minority of panelists continue to apply retroactive
>> standards such as those found in MummyGold and other decisions attempting to
>> retroactively apply Paragraph 2 to the Policy).
>>
>>
>>
>> 6. Trademark rights have been proscribed to a ³standing²
>> requirement that presents no meaningful condition.
>>
>>
>>
>> 7. The requirement that the trademark be ³identical or confusingly
>> similar² to the asserted trademark has been proscribed such that the
>> condition is met whenever the trademark appears (in whole or significant
>> part) in the domain name. Thus, for example, the rule supports finding that
>> the domain name ³the.com² is confusingly similar to a trademark for ³Theatre²
>> because the letter sequence ³the² appears in both.
>>
>>
>>
>> 8. Panelists rarely apply trademark analysis to the registrant¹s
>> use of the domain name.
>>
>>
>>
>> UDRP Appeals Process.
>>
>>
>>
>> I have forwarded a prior email to Mr. Beckman and the WG on the subject of a
>> UDRP appeal process organized and managed in a manner similar to the DRS
>> process at Nominet. This is not a change of position as I favor an appeals
>> process for all UDRP participants.
>>
>>
>>
>> As I stated in my communications, such an appeals process is not a
>> replacement of Section 4(k) or the mutual jurisdiction certification.
>> Instead it should be an economical means of correcting poorly reasoned
>> decisions by inexperienced or biased panelists economical in that it limits
>> those situations in which the parties must spend tens of thousands of dollars
>> in litigation.
>>
>>
>>
>> I strongly disfavor any appeals process that would be unique to NGOs or that
>> would remove the protections of Section 4(k) or the mutual jurisdictional
>> certification.
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