[Gnso-igo-ingo-crp] Option #6 reminder

Thu Nov 30 16:09:38 UTC 2017

Thanks for these thoughtful comments, Paul.

While we must limit ourselves to policy recommendations specific to IGOs, the WG can certainly discuss whether the 4k wording and related issues is something that should be focused upon by the RPM Review WG when it reaches UDRP review in phase 2 of its work.

Best, Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Paul Keating [mailto:Paul at law.es]
Sent: Thursday, November 30, 2017 6:54 AM
To: Corwin, Philip <pcorwin at verisign.com>; icann at leap.com; gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Option #6 reminder

Phil,

While I agree that 4(k) is not well written, at least as concerns IGO/NGOs the issue of sov. Immunity waiver is limited to actions concerning the domain name.  This has been upheld in several courts (limiting the nature of the claims) and most recently I have seen it in the Marchex decision in which the court limited the remedies sought by the plaintiff in a default action because the judge felt that the waiver only encompassed issues as to the control over the domain and did not include any right to damages - thus treating the action as an "in rem" action for all intents and purposes (in an In Rem action under the ACPA damages are prohibited).  I attach the recommendation of the Magistrate which was adopted by the court.

However, it is not possible for a losing Respondent to sue "In Rem" unless the order has already been carried out by the registrar. The reason being that prior to domain transfer, the domain is still held by the respondent and thus any "In Rem" action would be moot.

I do agree that a change is required to 4(k) so as to increase the odds that a losing registrant may have their day in court.  At present, courts have almost universally agreed that 4(k) merely allows one to file but doe snot itself create any form of underlying claim that is operative under the local laws of the selected jurisdiction. Thus, to survive a motion to dismiss the registrant must find a valid underlying claim upon which to base the action permitted by 4(k).  In the US this is simple because of the ACPA.  In other jurisdictions it is not so clear.  I am addressing one in the EU and we are in part basing the claim upon the Human Rights Directive which is binding law in all EU member states.

To make 4(k) really work, several things must be addressed, including IMHO, the following:

1.            Clarify that the UDRP is NOT to be treated as an arbitration under relevant conventions

2.            Clarify that in such an action the intention is to have a de novo proceeding not bound by the Panel Ruling

3.            Expand the 10 business day rule so as to apply to any action brought in any court of mutual jurisdiction

4.            Including in the MJ a forced choice for where the Registry resides

5.            Including in the MJ a forced choice for where ICANN resides

Paul

From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>> on behalf of "Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>>
Reply-To: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Tuesday, November 28, 2017 at 9:12 PM
To: "icann at leap.com<mailto:icann at leap.com>" <icann at leap.com<mailto:icann at leap.com>>, "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>>
Subject: Re: [Gnso-igo-ingo-crp] Option #6 reminder

   George:

   This email is in my co-chair capacity.

   I have clicked on the pipermail link your provide and find this (excerpt) as your proposal-

                   paragraph 4(k) of the rules:

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

   only specifically contemplates "in personam" court cases brought by

   the UDRP respondent (domain owner) against the party who filed the

   UDRP (i.e. the UDRP complainant). The relevant part of paragraph 4(k)

   is:

   "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) of the Rules of Procedure. "

   (emphasis added, via the asterisks)

   However, if the wording was changed very slightly, it would clarify

   the situation with regards to "in rem" and/or "quasi in rem" suits,

   i.e. the language in the asterisk section above could become:

   "you have commenced a lawsuit ***concerning the domain name**** in a

   jurisdiction to which the complainant has submitted"

   i.e. by changing "against the complainant" to "concerning the domain

   name", the latter language would cover not only in personam actions

   brought against the UDRP complainant, but also cover both in rem and

   quasi in rem actions too.

   [Aside: the language of the UDRP is actually very poorly worded; by

   the language of 4(k) as it stands now, it doesn't even say that the

   lawsuit against the UDRP complainant even needs to relate to the

   domain name under dispute! i.e. you could sue for *any* cause of

   action, even unrelated to the domain name, and by a strict reading of

   the 4(k) language, the registrar has to not implement the decision!

   We'll need to fix that in 2018 or 2019 or beyond, in the RPM working

   group PDP...] (Emphasis added)

   I want to make sure that your proposal gets thorough review and fair consideration.  But the language you have proposed would apply to all UDRP disputes, not just those in which an IGO was the Complainant, and as such is beyond the scope of this WG's Charter (as you observe, this UDRP language can be reviewed by the RPM Review WG when it reaches phase 2 of its effort).

   To cure that overbreadth, would it be possible for you to present your proposed language as IGO-specific, either as an amendment to Option C as it was presented in our preliminary consensus call, or as a free-standing option? I think that would best assist the WG in fully considering it.

   Our likely agenda this week will be on portions of the draft final report on which we have broad consensus, so you would have until at least next week before this would be a germane topic for WG discussion.

   Thanks.

   Best regards, Philip

   Philip S. Corwin

   Policy Counsel

   VeriSign, Inc.

   12061 Bluemont Way

   Reston, VA 20190

   703-948-4648/Direct

   571-342-7489/Cell

   "Luck is the residue of design" -- Branch Rickey

   -----Original Message-----
   From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
   Sent: Monday, November 27, 2017 4:45 PM
   To: gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>
   Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Option #6 reminder

   At the last call, I was asked to resubmit Option #6 for discussion.

   One can read the original proposal at:

   http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html

   Conceptually, it's very simple. While other options consider what to do if one gets into the "special situation" we've discussed at length, this option is different because it would reduce the number of those special situations, by attempting to avoid the special situation entirely.

   The domain name owner mitigates the problem by suing "in rem" against the domain name itself, where the IGO isn't a named defendant and thus can't assert immunity at all.

   Option #6 simply modifies 4(k) of the policy, which currently requires that the registrar should lock the domain name if a case is brought against the UDRP complainant (i.e. "in personam"), to lock the domain name if any case is brought concerning the domain name dispute (in rem or in personam). The only effect of Option #6 is to require the locking in that situation (in rem suit) --- a domain name owner could already sue in rem if they wanted to, but it's uncertain whether or not a registrar would lock the domain name if they did so. Option #6 removes that uncertainty.

   This would actually be consistent with the first part of 4(k), which didn't specify that the case needed to be brought against the complainant, i.e it only said:

   "The mandatory administrative proceeding requirements set forth in Paragraph 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."

   It was only later on that the language (sloppily, in my opinion) required it to be "in personam", not contemplating that one might submit the dispute to a court of competent jurisdiction in another manner.

   Section 18 of the UDRP "Rules" at:

   https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

   actually contemplate any type of dispute (could be in personam, could be in rem), using the phrase "any legal proceedings....in respect of a domain-name dispute".

   Thus, Option #6 is entirely consistent with the spirit and intent of the UDRP rules, and simply fixes language that was overly restrictive due to oversight by the drafters of the policy.

   Sincerely,

   George Kirikos

   416-588-0269

   http://www.leap.com/

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