[gnso-rpm-wg] Phase 1 vs Phase 2 proposals/topics (was Re: UPDATE: Agenda and Materials for 26 Sept Working Group Meeting 1200 UTC)

Wed Sep 26 19:25:27 UTC 2018

Personally Brian I would focus in the main on jurisdictional issues and
process improvements.

As I said in the AC Chat today I think we should celebrate that URS, UDRP
and judicial proceedings are (and should remain) markedly different tools
because the differences are actually strengths rather than weaknesses. We
should also include advice on RAA 3.18 to take the immediacy out of
egregious abuse because it’s important to remember the TM owner is a third
party looking to initiate proceedings to intervene in a private contract.

We should also be mindful that any administrative dispute mechanisms as a
whole need to be better aligned to legislative frameworks especially if
there are instances where the judicial systems are clearly providing more
equitable outcomes. Whatever the reasons continued divergence of outcomes
is very damaging for the credibility of URS & UDRP therefore any suggested
improvements should consider this very carefully before being placed out
for wider consideration.

On tangible suggestions, I personally see a great deal of value in
mediation, certainly for UDRP and possibly for URS as we know Nominet has
an incredible 30% no cost [to the parties] resolution of disputes through
this method.

I say possibly for URS because speed of relief is especially important for
URS and we would need to carefully balance any additional delays introduced
by [any] mediation response periods, again this maybe made less critical by
also using the 3.18 route to help remove some of the urgency.

Having the 3.18 route which allows the shutting down of a website in
minutes or hours and URS which permits the shutting down of a website in
days through non-judicial injunction remedies without having to go to court
and neither of which need to be confirmed by a court of competent
jurisdiction are already incredible benefits. If we could further improve
on this by removing the costs for all parties for 30% of disputes this
would be a phenomenal achievement.

Where there is disagreement with the outcome of a determination better
access to justice through the existing judicial route could be created by
looking again at the mutual jurisdiction clause and supplemented with a
separate arbitration track which registrants could choose to use as
alternative to judicial proceedings.

On Wed, Sep 26, 2018 at 12:11 PM BECKHAM, Brian <brian.beckham at wipo.int>
wrote:

> Paul, this is a good point that such RPMs may have limits vis-a-vis court
> proceedings; would you be able to expand on what improved acces might
> entail (for example ICANN or CPHs subsidizing filing fees)?
>
>
> Brian
>
> On 26 September 2018 at 12:59:31 CEST, Paul Tattersfield <
> gpmgroup at gmail.com> wrote:
>
> Injecting any additional costs into an administrative system with all the
> inherent weaknesses is a bad idea, a very bad idea rather we should be
> concentrating on improving the administrative systems by making them more
> equitable and more efficient. There is little point trying to partially
> replicate more and more from judicial systems, if people want to see
> increased punitive measures to curb abusive behaviour then we should be
> concentrating on providing improved access to non administrative dispute
> resolution mechanisms.
>
> On Wed, Sep 26, 2018 at 11:13 AM Marie Pattullo <marie.pattullo at aim.be>
> wrote:
>
> Thank you for your thoughts George; I disagree, however, as these
> proposals refer to the mechanism of the URS. Should similar proposals be
> put forward for the UDRP I would not see any contradiction.
> Kind regards
> Marie
>
> -----Original Message-----
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of George
> Kirikos
> Sent: Wednesday, September 26, 2018 11:45 AM
> To: gnso-rpm-wg at icann.org
> Subject: [gnso-rpm-wg] Phase 1 vs Phase 2 proposals/topics (was Re:
> UPDATE: Agenda and Materials for 26 Sept Working Group Meeting 1200 UTC)
>
> Hi folks,
>
> I notice that 2 of the proposals scheduled for today's call (#15 and #22,
> additional penalties for repeat offenders + loser pays) were ones I
> identified on September 11, 2018 as being more appropriate for Phase
> 2 discussions, see:
>
> https://mm.icann.org/pipermail/gnso-rpm-wg/2018-September/003315.html
>
> and the ensuing thread. On our last call, Phil Corwin stated:
>
>
> https://gnso.icann.org/sites/default/files/file/field-file-attach/transcript-rpm-review-17sep18-en.pdf
>
> "And then those of you who saw on the list last week, George Kirikos
> raised a question regarding the distinction between Phase 1 and Phase
> 2 proposals and the chairs are going to put out a statement on that in the
> next day or two that can be discussed on the list before the next meeting.
> But we haven't had a chance to put that out yet but the few proposals that
> George identified that he thought would be more properly addressed in Phase
> 2 also were not called up, although I think the first one would have been
> Number 14, which would not have been reached today anyway. But we’re going
> to have a statement out on that in the next few days." (page 2)
>
> However, no such statement has been put out by the co-chairs since that
> last call.
>
> Since we only have 2 minutes to respond to each proposal during today's
> call, I'd like to reiterate my objection to having these proposals be
> presented at this time, unless it's agreed in advance that these same
> topics are going to be completely barred from consideration in relation to
> the UDRP.
>
> It's clear to me that these same topics are intended to be raised again
> for the UDRP (indeed, the rationale for proposal #22 "loser pays"
> explicitly references the UDRP). They shouldn't get two bites at the apple,
> so to speak.
>
> One of the main justifications for splitting the work into Phase 1 and
> Phase 2 was to avoid duplication, and having these proposals presented and
> considered now makes a mockery of that.
>
> Should the proposals above be allowed to proceed to the presentation stage
> now, despite their relevance to the UDRP and Phase 2, then various
> counterbalancing proposals to protect registrants' rights and due process
> that I submitted and explicitly labelled as being more suitable for Phase 2
> (since they apply to both the URS and UDRP) should be given equal time in
> Phase 1 presentations to be considered with and alongside the above
> proposals.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Tue, Sep 25, 2018 at 2:21 PM, Julie Hedlund <julie.hedlund at icann.org>
> wrote:
> > Dear RPM PDP Working Group members,
> >
> >
> >
> > On behalf of the Co-Chairs, please see the draft agenda below for the
> > Working Group meeting on Wednesday, 26 September at 1200 UTC (NOTE
> > ROTATING
> > TIME) for 120 minutes.
> >
> >
> >
> > Per Co-Chairs’ Proposed Procedure, for this next meeting, the Working
> > Group will continue discussion of the Individual URS Proposals.
> > According to the timeline published on the wiki and as described in
> > the message below, the order of the presentation is as follows.  WG
> > members are requested to review the presentations prior to Wednesday’s
> > meeting.  Staff would like to provide you a heads-up that the order of
> > presentations tomorrow would be slightly adjusted as follows:
> >
> >
> >
> > Brian Winterfeldt’s team:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -10.pdf?api=v2
> > Brian Winterfeldt’s team:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -11.pdf?api=v2
> > George Kirikos:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -24.pdf?api=v2
> > Zak Muscovitch:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -25.pdf?api=v2
> > Brian Winterfeldt’s team:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -15.pdf?api=v2
> > Brian Winterfeldt’s team:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -16.pdf?api=v2
> > Brian Winterfeldt’s team:
> > https://community.icann.org/download/attachments/93126760/URS-Proposal
> > -22.pdf?api=v2
> >
> >
> >
> > Per the procedure, please also note the following time requirements
> > for the
> > presentations:
> >
> >
> >
> > When a proposal is up for discussion, its proponent will be accorded a
> > maximum of five (5) minutes to orally present the proposal, rationale,
> > and supporting evidence.
> > The floor will then be open to other Working Group members to comment
> > on the proposal for a maximum of two (2) minutes each, with total
> > discussion limited to twenty (20) minutes. However, if there is
> > exceptionally high interest in a topic, the Co-Chairs would have
> > discretion to increase the discussion time.
> > At the end of twenty (20) minutes, or when there are no more
> > commenters in queue, the proponent will have up to four (4) minutes to
> > respond and/or propose a modification of the proposal based upon the
> discussion.
> >
> >
> >
> > Depending on the actual progress during the Wednesday meeting, if a
> > proposal cannot be presented due to time limitation, the presentation
> > should be deferred to a future meeting.
> >
> >
> >
> > Draft Agenda:
> >
> > Review Agenda/Statements of Interest Updates Discussion of Individual
> > URS Proposals (See:  wiki) AOB
> >
> >
> >
> > Best,
> >
> > Mary, Ariel, Berry, and Julie
> >
> > On Behalf of the RPM PDP WG Co-Chairs
> >
> >
> > _______________________________________________
> > gnso-rpm-wg mailing list
> > gnso-rpm-wg at icann.org
> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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>
>
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