[Gnso-igo-ingo-crp] Co-Chairs' proposal for Working Group consideration - UPDATED

Wed Oct 4 16:58:02 UTC 2017

I understand the need for diplomacy and the politics involved however I am
concerned that the proposals before the working do not articulate the
correct equtable and legal position.

We need to make it very clear, no matter how unpalatable the position, that
the IGOs would not be entitled to immunity when initiating proceedings in
any other forum.

Absent UDRP there are two possible ways the immunity question could come
before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has
registered

In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to
consider the matter.

I appreciate this is a very precise legal point and even Prof. Swaine
confused this in his reasoning* but we as a working group have no excuse.

Best regards,

Paul.

*In 3. Discussion (Page 8) Swaine says:

"The core question is whether an IGO is “entitled to immunity,” but the
baseline assumptions may be disaggregated. An IGO’s immunity would be most
clearly at issue if the IGO had not itself initiated any related judicial
proceeding—since that would risk waiving any immunity to which it would be
entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction
provision were absent. This might be the case, for example, where a
domain-name registrant has sought a declaratory judgment in relation to
some actual or potential infringement by an IGO.19 Although that is not the
scenario of principal concern here, imagining that scenario usefully
isolates the question as to whether an IGO has a legitimate expectation
that it would be entitled to immunity absent the UDRP and its concessions.
If such immunity is minimal or uncertain, then any compromises required by
the UDRP loom less large; if the IGO would otherwise be entitled to
immunity, however, its potential sacrifice seems more substantial."

On Wed, Oct 4, 2017 at 2:40 PM, Phil Corwin <psc at vlaw-dc.com> wrote:

> George:
>
> You are correct, and I hereby offer a Mea Culpa for that incorrect
> sentence, which I authored. It was a mistake on my part rather than any
> attempt to mislead the WG.
>
> My personal view remains that Option A would be DOA upon arrival at the
> GNSO Council, and that Option B would suffer the same fate because it
> adopts Option A for all grandfathered domains. The bigger problem is that
> such rejection might bring down the entire Final Report.
>
> Best, Philip
>
> 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: Wednesday, October 04, 2017 6:39 AM
> To: gnso-igo-ingo-crp at icann.org
> Subject: Re: [Gnso-igo-ingo-crp] Co-Chairs' proposal for Working Group
> consideration - UPDATED
>
> In my email last week:
>
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html
>
> I pointed out various flaws in the "Preliminary Notes" section:
>
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-September/000849.html
>
> e.g. in relation to Option B, it was asserted:
>
> "They also observe that it would leave registrants of grandfathered
> domains without any arbitral appeal option in the event that an IGO
> successfully invoked judicial process immunity."
>
> which is obviously incorrect, because in that scenario "Option A"
> would apply, and there would not be any need for the registrants to seek
> arbitration, given the UDRP decision would be vitiated.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
>
> On Wed, Oct 4, 2017 at 2:52 AM, Steve Chan <steve.chan at icann.org> wrote:
> > Dear WG Members,
> >
> >
> >
> > Taking into account the WG members’ conversations on the 28 September
> > WG meeting, staff has updated the “Options Proposal for WG Discussion”
> > document for continued discussion on the upcoming 5 October meeting.
> > It is anticipated that the conversation will return to Option B and
> > then continue to then discuss Option C.
> >
> >
> >
> > Please do let us know if anything might require adjustment prior to
> > the WG’s next meeting.
> >
> >
> >
> > Best,
> >
> > Steve
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > Steven Chan
> >
> > Policy Director, GNSO Support
> >
> >
> >
> > ICANN
> >
> > 12025 Waterfront Drive, Suite 300
> >
> > Los Angeles, CA 90094-2536
> >
> > steve.chan at icann.org
> >
> > mobile: +1.310.339.4410
> >
> > office tel: +1.310.301.5800
> >
> > office fax: +1.310.823.8649
> >
> >
> >
> > Find out more about the GNSO by taking our interactive courses and
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> >
> >
> >
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> >
> >
> >
> >
> > _______________________________________________
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