[gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018

Tue Feb 6 19:40:51 UTC 2018

Scott,

None of the cases in the US will discuss the UDRP decision.  From the
outset the first court opinions stated that the UDRP decision was not
relevant and would not be considered.  This was in response to the defense
argument that the UDRP constituted an arbitration and was thus outside of
the court¹s jurisdiction under the Arbitration Act.  This is not
necessarily the case in other jurisdictions some of which tend to treat
the litigation as an ³appeaL¹ and thereafter conducting a de novo review.

And there are some jurisdictions which either (a) reject any post UDRP
litigation for lack of the ability to state a claim for relief (e.g. They
have no ACPA or similar laws), or (b) find the UDRP to have been an
arbitration and thus conclusive.

Hope this helps.

Paul

On 2/6/18, 8:17 PM, "gnso-rpm-wg on behalf of Scott Austin"
<gnso-rpm-wg-bounces at icann.org on behalf of SAustin at vlplawgroup.com> wrote:

>George:
>Some of the links you provided raised safety concerns on my browser so I
>did not review every link, but for each case for which you provided
>alternate links I was able to get at least the domain press version. It
>appears all but the last are stipulated settlements with no court opinion
>or analysis of claims or any discussion of a legal basis for overriding
>the underlying UDRP result. To echo an earlier post, it is questionable
>what, if anything, can be drawn from the court sanctioned settlements as
>the defendants in each case might have just lacked the resources or
>resolve to defend their UDRP success in an action in US federal court.
>The same would apply to the default judgment you obtained in Canada  for
><pupa.com> which WIPO did post. These cases show no court analysis
>questioning the efficacy of the UDRP.
>
>The 4th entry on your list is interesting but may be very limited to its
>facts, especially as the Hogan Lovells analysis rightly points out, after
>the French district court agreed with the UDRP result the French
>appellate court considered territoriality in an infringement action and
>relied upon the related website's territoriality carve out (tabs for only
>non-EU countries) to deny trademark infringement, consistent with French
>precedent, even in the presence of use of a mark in  a .com global gTLD
>domain name. As HL rightly pointed out, "the assessment of trademark
>infringement is intrinsically different from the assessment conducted
>under the UDRP."
>
>Best regards,
>Scott
>
>Please click below to  use my booking calendar to schedule:
>  a 15-minute call    a 30-minute call    a 60-minute call
>
>
>Scott R. Austin | Board Certified Intellectual Property Attorney | VLP
>Law Group LLP
>101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
>Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com
>
>-----Original Message-----
>From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
>George Kirikos
>Sent: Tuesday, February 6, 2018 9:02 AM
>To: gnso-rpm-wg at icann.org
>Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review
>of all Rights Protection Mechanisms (RPMs) PDP Working Group call on
>Thursday, 01 February 2018
>
>P.S. While I have Brian's attention, I'd like to note that I've
>**repeatedly** brought to WIPO's attention various court appeals of UDRP
>decisions, yet they they never get posted to WIPO's page at:
>
>https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c
>hallenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8gCisD8w8i
>AijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
>
>I understand that others have attempted to also get cases added to that
>list, without success. Thus, perhaps we have a situation of low
>*reported* appeals, because of missing data with regards to court actions.
>
>Here are 4 court cases that I brought to WIPO's attention already:
>
>1. 
>https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXihZRN
>shnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvdQtsUOtwg
>8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 --
>https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/07/21
>/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1hdACWod77
>IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvnnqzmEP56VNRp
>k4cVR9l1kp6-&typo=1
>
>2. 
>https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8lJn4c
>5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehnlfr0ONkT
>GY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 --
>http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscour
>ts.cod.147273.23.0.pdf
>
>3. 
>https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzgcZDL
>BXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl9h5newNW
>NDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 --
>https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/07/22
>/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLGelVVrPkR
>Yuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZs7ectA9nxVRf
>1IrhBQnX-tXBEaOPEOaj4,&typo=1
>
>4. 
>https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm51Ib
>qbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG05TSsexK
>9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 --
>https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/deta
>il.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4XKMVdRe1
>Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAyr-XQiHGxG44T
>wbnDpVipyHVjDFiuohck,&typo=1
>https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurisprudenc
>es/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E,1,d29bBL
>DOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ffiDDy7KlgB3xm
>GDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1
>https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/s
>earch/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ2JyqinuJ
>afCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZykPVLyv1ALK4
>FywjpoKe_x9c1WUfl&typo=1
>
>Perhaps similar cases exist for the URS (although, less likely, given
>that new gTLD domains tend to be worth far less than .com domain names,
>and thus it makes less economic sense to invest money in legal fees to
>defend them).
>
>Let's check back at:
>
>https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c
>hallenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2WohfKoubt
>o77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&typo=1
>
>and see if those 4 cases above get added.
>
>Sincerely,
>
>George Kirikos
>416-588-0269
>https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj6kIM
>Bk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQhTJVMpDts
>HsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
>
>
>
>
>
>
>
>
>
>
>
>
>
>On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann at leap.com> wrote:
>> Well said, Rebecca.
>>
>> Furthermore, if a low level of appeals is an appropriate metric, then
>> I would think that the low overall usage rate of the entire URS
>> procedure, relative to the number of domain names registered, should
>> also be an appropriate metric. The same would apply to the very low
>> sunrise usage. That would support the elimination of the sunrise and
>> URS procedures, given their low adoption.
>>
>> The fact that just 33 survey responses in the INTA survey were
>> considered by some here to be very powerful evidence (LOL!) speaks for
>> itself.
>>
>> Unlike those 33 survey responses which purported to be statistically
>> representative of all TM holders worldwide and valid, we can review
>> the entire universe of URS decisions (thus it's no longer a *sample*
>> of a larger population, where getting a reliable sample might be hard;
>> it's the *entire* population being studied).
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_b
>> Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc0
>> F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
>>
>> On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca
>> <rtushnet at law.harvard.edu> wrote:
>>> I'd like to reiterate to the mailing list that "subjective" is often
>>> being used in an undefined and I think unjustified way.  As was
>>> pointed out on the call, there are plenty of qualitative inquiries on
>>> which we can expect agreement and which shouldn't be deemed
>>> "subjective" by any standard: did the panelist identify the domain
>>> name at issue?  Did the panelist identify the abusive use?
>>> Aggregated, these individual observations provide valuable
>>> information about the transparency and functioning of the process as a
>>>whole.
>>>
>>>
>>> In general, many in this group don't trust the average registrant
>>> involved in a dispute, so it's not clear to me why their appeals, or
>>> lack thereof, would guide whether we think the process is working.
>>> Especially when there are a lot of defaults, the appeal rate doesn't
>>> indicate much--similar to debt collection against poor people in the
>>> US, where there are lots of defaults but when individual claims are
>>>examined they often don't hold up.
>>> I expect that the rate of valid claims in the URS is much higher than
>>> the rate of valid claims in US debt collection cases, but that's just
>>> an expectation in advance of a lot of data.  Relatedly, the appealed
>>> cases are ones where the process is most likely to work as intended,
>>> because the parties join the issues.  But again, that's an
>>> expectation, and should be examined.
>>>
>>>
>>>
>>> Rebecca Tushnet
>>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>>> 703 593 6759
>>> ________________________________
>>> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of
>>> BECKHAM, Brian <brian.beckham at wipo.int>
>>> Sent: Tuesday, February 6, 2018 6:04:27 AM
>>> To: Julie Bisland; gnso-rpm-wg at icann.org
>>> Cc: gnso-secs at icann.org
>>> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for
>>> Review of all Rights Protection Mechanisms (RPMs) PDP Working Group
>>> call on Thursday,
>>> 01 February 2018
>>>
>>>
>>> Thanks Terri, Julie,
>>>
>>>
>>>
>>> Having listened to the call recording, it is plain to see there is
>>> strong (and well-reasoned) disagreement on whether to proceed with a
>>> ³subjective and qualitative review² of URS decisions with respect to
>>> the standard of evidence.
>>>
>>>
>>>
>>> Given this, and perhaps as a start, we can look to see the number of
>>> cases which have been appealed -- whether on the merits or following
>>> a default -- to see if registrants themselves believe the standard is
>>>being misapplied.
>>> A statistically low number of appeals would suggest the answer may be
>>>³no².
>>>
>>>
>>>
>>> If on the other hand, there is a significant instance of appeals,
>>> that may merit the type of ³review² proposed by some WG members.  For
>>> that event, perhaps the WG should already agree to avoid an approach
>>> that would risk re-litigating the decisions themselves;  instead, the
>>> WG could agree to only review select URS decisions with a view to
>>> possible ³improvements² going forward (e.g., as I believe Jeff Neuman
>>> proposed, suggesting that decisions should contain some minimal
>>>reasoning/elements).
>>>
>>>
>>>
>>> Brian
>>>
>>>
>>>
>>> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
>>> Julie Bisland
>>> Sent: Thursday, February 01, 2018 2:24 PM
>>> To: gnso-rpm-wg at icann.org
>>> Cc: gnso-secs at icann.org
>>> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review
>>> of all Rights Protection Mechanisms (RPMs) PDP Working Group call on
>>> Thursday, 01 February 2018
>>>
>>>
>>>
>>> Dear all,
>>>
>>>
>>>
>>> Please find the attendance and AC Chat transcript of the call
>>> attached to this email. The MP3 and Adobe Connect recording are below
>>> for the Review of all Rights Protection Mechanisms (RPMs) PDP Working
>>> Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance
>>> and recordings of the call is posted on agenda wiki page:
>>> https://community.icann.org/x/uAxyB
>>>
>>> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
>>>
>>> Adobe Connect recording:  https://participate.icann.org/p6mww2tis6b/
>>>
>>>
>>>
>>> The recordings and transcriptions of the calls are posted on the GNSO
>>> Master Calendar page:
>>> https://gnso.icann.org/en/group-activities/calendar
>>>
>>>
>>>
>>> ** Please let me know if your name has been left off the list **
>>>
>>>
>>>
>>> Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
>>>
>>>
>>>
>>> Main wiki page for the working group:
>>> https://community.icann.org/x/wCWAAw
>>>
>>>
>>>
>>> Thank you.
>>>
>>> Kind regards,
>>>
>>> Terri
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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