[Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Mike Rodenbaugh
mike at rodenbaugh.com
Thu Nov 16 17:24:00 UTC 2017
I completely agree with Paul on this. These IGO names issues have been a
political football for nearly five years now. The GAC is never going to
get the GNSO to say what the GAC wants it to say -- we are not going to
agree. The GAC has never proved any legitimate public interest concern to
back their position. Accordingly, the IGO names policy was passed by a
supermajority of the GNSO (as likely will be this latest policy
recommendation) and that has implications in the Bylaws for the Board. The
Board needs to make a decision. The GNSO need not be interested in
politics, that is the Board and GAC's concern; we are interested in facts
and real world policy.
Mike Rodenbaugh
RODENBAUGH LAW
tel/fax: +1.415.738.8087
http://rodenbaugh.com
On Thu, Nov 16, 2017 at 8:51 AM, Paul Keating <Paul at law.es> wrote:
> 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 <(202)%20559-8597>/Direct
>
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>
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>
>
> 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 “Mutual
> Jurisdiction” the complainant (including the IGO) is waiving any objection
> to jurisdiction of the mutual jurisdiction.
>
>
>
> B. That by relying upon “trademark” 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 “precedent” 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 “standing”
> requirement that presents no meaningful condition.
>
>
>
> 7. The requirement that the trademark be “identical or
> confusingly similar” 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 “the.com” is confusingly similar to a
> trademark for “Theatre” because the letter sequence “the” appears in both.
>
>
>
> 8. Panelists rarely apply trademark analysis to the
> registrant’s 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 expert legal advice within the demanding business environment of
> the client.
>
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>
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>
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>
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>
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>
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>
> email: Paul at law.es
>
>
>
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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 “Mutual
> Jurisdiction” the complainant (including the NGO) is waiving any objection
> to jurisdiction of the mutual jurisdiction.
>
>
>
> B. That by relying upon “trademark” 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 “precedent” 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 “standing”
> requirement that presents no meaningful condition.
>
>
>
> 7. The requirement that the trademark be “identical or
> confusingly similar” 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 “the.com” is confusingly similar to a
> trademark for “Theatre” because the letter sequence “the” appears in both.
>
>
>
> 8. Panelists rarely apply trademark analysis to the
> registrant’s 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.
>
>
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
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