[GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

Fri Jan 4 19:28:51 UTC 2019

I was not involved with ICANN until late 2006, so I was not  PrticipNT in the discussions that led to the UDRP being established at its inception. Other members of this WG likely were and could knowledgeably respond to your initial question. While this WG's Charter requires it to consider whether URS should become an ICANN Consensus Policy, UDRP already has that status and I take it as a given that there is unlikely to ever be consensus within the ICANN community to do away with it. I therefore believe that our Phase 2 efforts will be better focused on improving it.

As to the provision of non-judicial alternatives to resolution of other types of legal disputes, I would note that UDRP is not applicable to all types of trademark disputes concerning domains, but only one narrow and rather simple type of trademark dispute that can be resolved quickly and without personal appearances, discovery, or other attributes of full judicial process.  Complex civil disputes do not lend themselves to that type of approach; antitrust/competition law disputes, for example, involve exceedingly complex legal and econometric analysis and extended discovery and other procedural attributes, and generally extend for years between initial filing and final appeals.

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-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
Sent: Friday, January 04, 2019 1:08 PM
To: gnso-rpm-wg at icann.org
Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

Phil:

Remind me, what was so special about trademark owners that merit them having non-judicial RPMs?

If a party had a dispute with a registrar or registry, that would typically be handled by the courts. e.g. if someone wanted to bring an anti-trust action against Verisign, that would happen in the courts.
Are you in favour of the creation of non-judicial alternatives to civil litigation for those other entities and causes of action too, that would expose Verisign to anti-trust decisions outside of courts?
If the "justification" for the ICANN-created RPMs is that they're lower cost alternatives to the courts, why not do the same for other causes of actions against registrars and registries, in the name of "self-help" which you appear to argue is desirable?

Where are the non-judicial "self-help" remedies for removing entries from the TMCH, for example?

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Fri, Jan 4, 2019 at 12:43 PM Corwin, Philip <pcorwin at verisign.com> wrote:
>
> Thanks for your feedback, Susan.
>
>
>
> A few additional personal comments—
>
> It appears from the ICE press release that a number of other national law enforcement agencies may have been involved in the seizures.
> While the seizure may have been “free” to the trademark owner if the domain was one that met the criteria for bringing a UDRP or URS, there is considerable expenditure of public funds in these efforts.
> These law enforcement agency domain actions are directed at criminal activity, whereas the great majority of UDRP and URS actions focus on domains that could be the subject of civil trademark litigation. I would not favor eliminating the availability of self-help to trademark registrants via non-judicial RPMs, but one unintended result of doing so might be to encourage some trademark owners to seek law enforcement actions against domains that previously would have merited the filing of a UDRP or URS.
>
>
>
> Best to all,
>
> 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: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
> Susan Payne
> Sent: Friday, January 04, 2019 5:41 AM
> To: George Kirikos <icann at leap.com>; gnso-rpm-wg
> <gnso-rpm-wg at icann.org>
> Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?
>
>
>
> I completely agree with Phil's comments.
>
>
>
> In addition:
>
> 1. Can we try to remember that not all rights infringement or enforcement happens in the US or has a US-connection.  From ICE's website the mission is "to protect the national security and public safety of the United States by disrupting and dismantling transnational criminal organizations that engage in cross-border crime".
>
>
>
> 2. Also from ICE's website: "Due to the lapse in federal funding, this website will not be actively managed".  Presumably there are also other impacts on ICE activity, and this is hardly the first time this has happened.
>
>
>
> Let's not argue for replacement of ICANN measures by a so-called "free" option which is not available to all, where any action taken depends on the US's current priorities, and whose funding generally is subject to whatever US political squabble happens to be occurring.
>
>
>
> Susan Payne
>
> Head of Legal Policy
>
>
>
> Valideus
>
> 28-30 Little Russell Street
>
> London WC1A 2HN
>
> United Kingdom
>
>
>
> E: susan.payne at valideus.com
>
> www.valideus.com
>
>
>
> Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Valideus.
>
> This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.
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> Valideus Ltd is registered in England and Wales with company number 06181291 and VAT number 272 9057 85.  Our registered office is at 28-30 Little Russell Street, London, WC1A 2HN.
>
>
>
>
>
> -----Original Message-----
>
> From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of
> George Kirikos
>
> Sent: 02 January 2019 21:13
>
> To: gnso-rpm-wg <gnso-rpm-wg at icann.org>
>
> Subject: Re: [GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?
>
>
>
> Hi Theo,
>
>
>
> If it was only about copyright issues, then the list will likely be useless, as I agree that it's out of our scope.
>
>
>
> But, it's possible (as per the TechDirt article) that it was actually TM issues too, in which case ICE might have gone after cybersquatting.
>
> One will be able to quickly determine things by looking at the actual list of domains.
>
>
>
> In the last paragraph of the TechDirt article, the author writes:
>
>
>
> "I've fired off a FOIA request asking for the details of these "seized" domains and the communications with those industry partners.
>
> Should ICE ever decide to obey the law and respond to the FOIA, we'll share it here."
>
>
>
> But, perhaps someone else here already has the list and is allowed to publish it.
>
>
>
> Sincerely,
>
>
>
> George Kirikos
>
> 416-588-0269
>
> http://www.leap.com/
>
>
>
> On Wed, Jan 2, 2019 at 4:03 PM theo geurts <gtheo at xs4all.nl> wrote:
>
> >
>
> > Hi George,
>
> >
>
> > Is a full list going to help us here? ICE is focussed on copyright "issues."
>
> > Sure we can discuss if they do it correctly or not, but it seems to
> > be
>
> > out of our scope.
>
> > Our bylaws are pretty clear, not to mention;
>
> > https://www.icann.org/news/blog/icann-is-not-the-internet-content-po
> > li
>
> > ce
>
> >
>
> > Feel free to correct me, I somewhat lost track of this group, so I
>
> > apologize in advance.
>
> >
>
> > Thanks,
>
> >
>
> > Theo Geurts CIPP/E
>
> >
>
> >
>
> > On 2-1-2019 17:48, George Kirikos wrote:
>
> > > Hi folks,
>
> > >
>
> > > Happy New Year.
>
> > >
>
> > > There was news about ICE seizing over 1 million domain names, see:
>
> > >
>
> > > https://www.ice.gov/news/releases/over-million-websites-seized-glo
> > > ba
>
> > > l-operation
>
> > >
>
> > > https://www.techdirt.com/articles/20181213/18030341224/ice-seizes-
> > > ov
>
> > > er-1-million-websites-with-no-due-process-apparently-unaware-that-
> > > co
>
> > > pyright-trademark-are-different.shtml
>
> > >
>
> > > I was curious whether anyone (maybe a registrar, registry, or TM
>
> > > holders who were involved, i.e. the "industry partners") has and
> > > can
>
> > > share the complete list of domain names that were seized, as that
>
> > > might be a potential source of data for our work.
>
> > >
>
> > > Sincerely,
>
> > >
>
> > > George Kirikos
>
> > > 416-588-0269
>
> > > http://www.leap.com/
>
> > > _______________________________________________
>
> > > 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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>
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>
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