[Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November

Wed Nov 5 14:35:20 UTC 2014

Hello all,

I wanted to provide the following prior to the upcoming call.

I am still bothered by the apparent desire to treat organizations
differently and to limit the work of the WG artificially (IMO).  I am
concerned doing so will lead to (a) further work, (b) inconsistent
conclusions and treatment, and (c) an eventual watering down of the dispute
process and the rights of registrants..

In reviewing the following please remember that the value of domain names is
continuing to increase and they will become more prominently used by serious
businesses.  In other words, we are no longer in the days of presuming the
problem is squatters and the like.

I see three (3) issues here:

1. Standing (what it takes to participate in the curative process)
2. Immunity issues (the apparent waiver caused by the complainant's
selection pif the Mutual Jurisdiction)
3. Costs

STANDING: It seems to me that there is a single standing threshold to be met
here for any curative rights  namely a trademark.

Whether that mark exists as a function of registration under national law or
under some vague concept of common law (which the UDRP panels have applied
even as to complainants in civil law jurisdictions with no "common law"
trademark jurisprudence) makes little or no difference be cause the
existence of the trademark is the most basic of standing requirements.
Treaties are not a separate form of law as treaties only have meaning as
adopted by the national laws of those States who are signatories to the
treaty.  In short there is no "international executive or legislative
branch".  Thus, any protection granted by treaty must be in turn founded in
the national laws of the signing states.  Thus, bits of the Paris Convention
is included as part of the Lanham Act.

If a complainant (whether an IGO, INGO, or any other person or entity)
cannot establish this threshold then there should be no further discussion.
To hold otherwise means that we are now embarking on creating a new curative
rights mechanism with a new standing criteria.  This would be highly
problematic for the reasons we have all discussed and I do not believe doing
so would be consistent with any mandate received.

So, it seems to me we can logically deal with each type of person/entity
under the same standing requirement. We have no need to discriminate here.

This leaves us with two subsequent issues to face  immunity and costs.

IMMUNITY.  As I noted in an earlier email, immunity is not absolute and a
waiver in one instance is not a waiver for all instances.  Thus, a State is
immune unless it is engaging in activities not relevant to governance (e.g.
Airlines).  The government loses its immunity as to matters concerning the
operation of the airline but not otherwise.  In this case, the issue is
registration of the domain name.   The question is by whom.

Registration by INGO/IGO, etc. In this case the complainant has already
agreed to the traditional RA which incorporates the UDRP and other
provisions.   I would argue that the act of registration already waived
immunity issues at least to the extent concerning the contractual
relationship (with the registrar).  As far as any curative rights
proceeding, that would automatically occur as a matter of law when the
IGO/INGO filed a complaint and selected the Mutual Jurisdiction.  However,
that wavier occurred ONLY with respect to the nature of the action  a
dispute over a domain.  Courts are intelligent enough to see through an
attempt to expand liability beyond that point.  So, I really do not see this
as a huge issue warranting a separate process.  And, if it were, it could be
aided by either amending the RULES of procedure clarifying that by
consenting the the MJ, the consent is only as to the issues pertaining to
domain name registration.  In other words, the MJ provision could limit any
potential exposure of the IGO/INGO.  This could be done without requiring
changes to the the UDRP itself.

Registration by third party (protective rights of IGO/INGO). In the case in
which a third party registers a domain the IGO/INGO believes to be
infringing, existing mechanisms are sufficient.  The IGO/INGO can
participate with TMCH to the extent it otherwise qualifies.  Again, if it
holds no trademark rights, it has no standing any any curative rights
mechanism.  I see no reason to allow them special treatment to receive
notice when they cannot do anything about the registration.  Thus, if they
qualify they can have appropriate notice and determine whether or not to
file a claim using existing curative rights mechanisms.

COSTS.    Someone has to pay for the process.  Just because entities do good
things does not remove them from economic reality.  Nor does it give us the
right to impose a "tax" on someone else to cover the costs that the IGO/INGO
does not want to (or perhaps even cannot) pay.  I am not expecting any of
the ADR providers to jump up an volunteer  even WIPO which itself is an IGO
who one would think should assist its "brethren".  This leaves ICANN or the
respondent.  ICANN is a doubtful funding agent as it sets a very dangerous
precedent for them.   Again, the respondent should not be made to pay this
amount and even if we attempted to impose it upon registrants they could
easily escape it by registering their domains for 10 years prior to the
effective date of any change (remember we are able only to impose this "new"
system as a matter of contract via the RAA and the RA.   So this returns us
to the point that regardless of their good deeds, unless an IGO or INGO can
get the law firm to donate time and filing fees, it simply cannot afford to
take advantage of the process.  This is nothing new and both claimants and
defendants (even those with VERY good claims) are regularly denied access to
the wheels of justice.

Erosion of Standards: I remain concerned as well that by separating out
various entities we run the risk of treating them inconsistently.  The
tendency here may be to have the rules for each entity group be slightly
different.  This will lead to confusion and conflict.  The UDRP has already
become so watered down that the language of the 1st element (which is a
standard term of art for trademark disputes) has become nothing more than a
"standing" hurdle that a worm could cross without much trouble.

So, I return again to my original point which is why distinguish?  It makes
no sense unless we are embarking on the establishment of a new standing
requirement.  I have not heard any consensus views in favor of such a
process.  Hence the "consensus" to differentiate makes little sense from a
logical perspective and will only make further work for someone down the
road, potentially leading to inconsistencies that we will all regret.

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

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From:  Mary Wong <mary.wong at icann.org>
Date:  Wednesday, November 5, 2014 12:45 AM
To:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on
Wednesday 5 November

> Dear WG members,
> 
> The agenda for our next meeting, on Wednesday 5 November, is as follows:
> 1. Roll Call/Updates to SOI
> 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for
> follow up on the GAC¹s Los Angeles Communique (see attached draft document
> from the WG Co-Chairs)
> 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red
> Cross and IOC compared to other INGOs
> 4. Next steps
> WG Co-Chair Petter Rindforth will chair the meeting.
> 
> Thanks and cheers
> Mary
> 
> Mary Wong
> Senior Policy Director
> Internet Corporation for Assigned Names & Numbers (ICANN)
> Telephone: +1 603 574 4892
> Email: mary.wong at icann.org
> 
> 
> 
> _______________________________________________ Gnso-igo-ingo-crp mailing list
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> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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