[council] IPC Proposed Revised IGO DRP

Gomes, Chuck cgomes at verisign.com
Fri Nov 30 14:25:35 UTC 2007


Thanks for the quick response Mike.  I do want to point out that you
have extended the topic from IGOs to NGOs.  Did you you mean to do that?

Chuck Gomes
 
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> -----Original Message-----
> From: Mike Rodenbaugh [mailto:mxrodenbaugh at yahoo.com] 
> Sent: Thursday, November 29, 2007 8:25 PM
> To: Gomes, Chuck; robin at ipjustice.org; council at gnso.icann.org
> Cc: Maher, David
> Subject: RE: [council] IPC Proposed Revised IGO DRP
> 
> Good question Chuck, thanks.  I think it ought to be binding 
> on the NGO, after putting the registrant through two ADRs and 
> losing both, since they are concerned about submitting to a 
> court's jurisdiction by appealing in these matters anyway, 
> and thus this 2d procedure would be made available to them.  
> But I think registrants should still have ability to go to a 
> court if they choose.  That would presume that they think 
> that court could and would assert jurisdiction over the NGO.  
> I think that would be extremely rare, yet ICANN shouldn't try 
> to prevent it at least for existing domain registrants since 
> they have the expectation of that recourse.
> 
> Mike
> 
> -----Original Message-----
> From: owner-council at gnso.icann.org 
> [mailto:owner-council at gnso.icann.org] On Behalf Of Gomes, Chuck
> Sent: Thursday, November 29, 2007 4:20 PM
> To: Mike Rodenbaugh; robin at ipjustice.org; council at gnso.icann.org
> Cc: Maher, David
> Subject: RE: [council] IPC Proposed Revised IGO DRP
> 
> 
> Mike,
> 
> In your proposal would the appeal arbitration be binding?
> 
> Chuck Gomes
>  
> "This message is intended for the use of the individual or 
> entity to which it is addressed, and may contain information 
> that is privileged, confidential and exempt from disclosure 
> under applicable law. Any unauthorized use, distribution, or 
> disclosure is strictly prohibited. If you have received this 
> message in error, please notify sender immediately and 
> destroy/delete the original transmission." 
>  
> 
> > -----Original Message-----
> > From: owner-council at gnso.icann.org
> > [mailto:owner-council at gnso.icann.org] On Behalf Of Mike Rodenbaugh
> > Sent: Thursday, November 29, 2007 7:01 PM
> > To: robin at ipjustice.org; council at gnso.icann.org
> > Cc: Maher, David
> > Subject: RE: [council] IPC Proposed Revised IGO DRP
> > 
> > 
> > Personally, I also do not support substantively expanding 
> the UDRP in 
> > any way for NGOs, they should have to meet the same 
> 3-factor test to 
> > prevail as would any other complaining party.
> > 
> > But I could support a special arbitration procedure for NGO's to 
> > dispute an adverse UDRP decision, and a carveout from the current 
> > rules so they would not have to submit to jurisdiction of a foreign 
> > court for such an appeal, as they would today by filing a UDRP 
> > complaint.  I had always understood that was the NGO's 
> primary concern 
> > with proceeding under the UDRP.  I think such an 
> arbitration process 
> > could be run by the existing UDRP providers, and could be 
> as simple as 
> > a second review by a different panelist (even at a different 
> > provider), at the NGO's cost.  This essentially would give them two 
> > chances at ADR, rather than having to appeal to a court.
> > 
> > Mike Rodenbaugh
> > 
> > -----Original Message-----
> > From: owner-council at gnso.icann.org
> > [mailto:owner-council at gnso.icann.org] On Behalf Of Robin Gross
> > Sent: Thursday, November 29, 2007 2:55 PM
> > To: council at gnso.icann.org
> > Cc: David W. Maher
> > Subject: Re: [council] IPC Proposed Revised IGO DRP
> > 
> > 
> > I share David's concerns about this proposal.  (Without 
> going into the 
> > specific concerns on the proposal) we should not circumvent 
> the treaty 
> > making process and international legal institutions - which is the 
> > correct forum to take such a proposal to.
> > 
> > ICANN has no authority to create special rights for IGOs vis-a-vis 
> > other legal rights to use domain names.
> > 
> > Robin
> > 
> > 
> > Gomes, Chuck wrote:
> > 
> > > David is very familiar with the underlying immunity issues and 
> > > believes that the DRP approach is a way for the IGOs to avoid the 
> > > treaty route. Here are his words, "This conflict can be
> > reconciled by
> > > the traditional means of treaties. I understand that the
> > impetus for
> > > this proposal is to do an end run around the treaty process."
> > >  
> > > Chuck Gomes
> > >  
> > > "This message is intended for the use of the individual or
> > entity to
> > > which it is addressed, and may contain information that is
> > privileged,
> > > confidential and exempt from disclosure under applicable law. Any 
> > > unauthorized use, distribution, or disclosure is strictly
> > prohibited.
> > > If you have received this message in error, please notify sender 
> > > immediately and destroy/delete the original transmission."
> > >  
> > >
> > >
> > --------------------------------------------------------------
> > ----------
> > >     *From:* Rosette, Kristina [mailto:krosette at cov.com]
> > >     *Sent:* Thursday, November 29, 2007 4:55 PM
> > >     *To:* Gomes, Chuck; council at gnso.icann.org
> > >     *Subject:* RE: [council] IPC Proposed Revised IGO DRP
> > >
> > >     Chuck,
> > >      
> > >     Given David's participation in the Joint Working 
> Group on 2003,
> > >     I've assumed he's familiar with the underlying immunity
> > issue that
> > >     motivates the arbitration proposal.  (For those
> > Councilors who may
> > >     not have the institutional knowledge of the IGO issue, it's
> > >     discussed in pages 12-14 of the Issues Report.)  I, for
> > one, would
> > >     welcome alternative suggestions from David - or 
> anyone for that
> > >     matter - that take into account the  immunity-driven
> > limitations.
> > >      
> > >     K
> > >      
> > >      
> > >
> > >
> > --------------------------------------------------------------
> > ----------
> > >         *From:* Gomes, Chuck [mailto:cgomes at verisign.com]
> > >         *Sent:* Thursday, November 29, 2007 4:42 PM
> > >         *To:* Rosette, Kristina; council at gnso.icann.org
> > >         *Subject:* RE: [council] IPC Proposed Revised IGO DRP
> > >
> > >         To get some discussion going, here's some 
> feedback received
> > >         from David Maher in the RyC, sent with David's permission.
> > >          
> > >         "This proposal still has the fundamental flaw that
> > it requires
> > >         mandatory ARBITRATION. It is an attempt to make
> > ICANN a global
> > >         legislative body outside the jurisdiction of
> > national courts.
> > >         The existing UDRP provides for a mandatory ADMINISTRATIVE
> > >         proceeding and has the following escape clause (4(k)):
> > >
> > >             Availability of Court Proceedings. The mandatory
> > >             administrative proceeding requirements set forth in
> > >             Paragraph 4 <BLOCKED::#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.
> > >
> > >         If ICANN can do this, it can make law on any other
> > subject. I
> > >         don't think we, as registries, want to subject 
> ourselves to
> > >         mandatory arbitration (except as provided in
> > contracts we have
> > >         signed) on any subject that the GNSO comes up with."
> > >          
> > >         Chuck Gomes
> > >          
> > >         "This message is intended for the use of the individual or
> > >         entity to which it is addressed, and may contain 
> information
> > >         that is privileged, confidential and exempt from 
> disclosure
> > >         under applicable law. Any unauthorized use, 
> distribution, or
> > >         disclosure is strictly prohibited. If you have 
> received this
> > >         message in error, please notify sender immediately and
> > >         destroy/delete the original transmission."
> > >          
> > >
> > >
> > --------------------------------------------------------------
> > ----------
> > >             *From:* owner-council at gnso.icann.org
> > >             [mailto:owner-council at gnso.icann.org] *On Behalf Of
> > >             *Rosette, Kristina
> > >             *Sent:* Wednesday, November 28, 2007 10:15 PM
> > >             *To:* council at gnso.icann.org
> > >             *Subject:* [council] IPC Proposed Revised IGO DRP
> > >
> > >             All,
> > >
> > >             Attached please find the IPC Proposed Revised IGO DRP,
> > >             which was approved by the IPC at its meeting this
> > >             morning.  Attached also for reference is a
> > redline against
> > >             the IGO DRP that was contained in the 28 
> September 2007
> > >             staff report.
> > >
> > >             The IPC believes that its proposed revised IGO DRP
> > >             remedies the aspects of the original IGO DRP that were
> > >             previously identified as being of concern. 
> > >
> > >             The IPC proposed revised IGO DRP does not 
> address - and
> > >             was not intended to address - the process by
> > which an IGO
> > >             DRP would become applicable to existing gTLDs.  
> >  Once (or
> > >             if) it does become applicable to existing gTLDs, the
> > >             proposed changes reflect a mechanism that is 
> believed to
> > >             treat existing gTLD registrants fairly.
> > >
> > >             Kristina
> > >
> > >
> > >
> > >             <<11282007 IPC Proposed Revised IGO DRP.DOC>> 
> <<Redline
> > >             IPC Proposed Revised IGO DRP against Original.DOC>>
> > >
> > 
> > 
> 
> 




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