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

Paul Keating Paul at law.es
Wed Nov 5 18:26:55 UTC 2014 

Thank you Phil,



From:  Phil Corwin <psc at vlaw-dc.com>
Date:  Wednesday, November 5, 2014 5:54 PM
To:  Paul Keating <paul at law.es>, Mary Wong <mary.wong at icann.org>,
"gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG
call on Wednesday 5 November

> Paul:
>  
> Thanks for the input.
>  
> I hope you will be on today¹s call where we can touch on these matters
> further, But from my perspective as co-Chair I don¹t perceive any ³apparent
> desire to treat organizations differently and to limit the work of the WG
> artificially². 
>  
> No decision has been made to treat IGOs differently. The WG will be looking at
> the extent to which IGOs have already registered trademarks and whether there
> are any meaningful barriers to other IGOs doing so. We¹ll also be objectively
> analyzing the sovereign immunity claim. And even were we to decide that the
> UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn¹t
> mean we would create a new curative rights process just for them ­ so far as
> I¹m concerned, any such new DRP would have to be based in globally recognized
> rights because ICANN is not in the business of creating new legal rights, and
> we have yet to determine whether such alternate rights actually exist.
>  
> Finally, the draft letter to the GNSO Council responding to the GAC Communique
> illustrates that we shall not be letting the GAC artificially limit the scope
> of our work; we intend to  faithfully and objectively carry out the Council¹s
> mandate as expressed in the Resolution that established this WG.
>  
> I hope that allays your concerns.
>  
> Very best,
> Philip
>  
>  
>  
> 
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/cell
>  
> Twitter: @VlawDC
>  
> "Luck is the residue of design" -- Branch Rickey
>  
> 
> From: gnso-igo-ingo-crp-bounces at icann.org
> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Keating
> Sent: Wednesday, November 05, 2014 9:35 AM
> To: Mary Wong; gnso-igo-ingo-crp at icann.org
> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call
> on Wednesday 5 November
> Importance: High
>  
> 
> 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 <mailto: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 Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
> 
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