[Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dorrain, Kristine
kdorrain at adrforum.com
Wed Nov 5 18:44:44 UTC 2014
I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet.
Sorry I missed the call today, so I hope I'm not repeating....
Kristine
Sent from my iPhone
On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul at law.es<mailto:Paul at law.es>> wrote:
Thanks,
So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis.
Paul
From: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Wednesday, November 5, 2014 7:11 PM
To: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>, Paul Keating <paul at law.es<mailto:paul at law.es>>, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>, "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto: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;
Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs.
So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution’s specific directive on that) and consider IGOs only in our further deliberations.
That is my personal view and other WG members are welcome to add their views.
Best, Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
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Washington, DC 20004
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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> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Wednesday, November 05, 2014 11:55 AM
To: Paul Keating; Mary Wong; gnso-igo-ingo-crp at icann.org<mailto: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 today’s call where we can touch on these matters further, But from my perspective as co-Chair I don’t perceive any “apparent desire to treat organizations differently and to limit the work of the WG artificially”.
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. We’ll 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 doesn’t mean we would create a new curative rights process just for them – so far as I’m 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 Council’s 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> [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<mailto: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)
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email: Paul at law.es<mailto:Paul at law.es>
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From: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Date: Wednesday, November 5, 2014 12:45 AM
To: "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto: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 GAC’s 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<mailto:mary.wong at icann.org>
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