[Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Mary Wong
mary.wong at icann.org
Wed Nov 5 22:07:08 UTC 2014
Just a note/reminder to follow up on Phil¹s points further upthread - in
addition to the nature of IGOs being different from INGOs (in that IGOs
are formed/constituted by governments) and the consequent issue regarding
submission to a national jurisdiction (which does not exist for INGOs),
the GAC advice given through several GAC Communiques has been directed
toward providing IGOs with certain protections. Except for the Red Cross
and the IOC, no other INGO has been the subject of similar advice from the
GAC.
(Please note that staff are not advocating for a different treatment of
the two types of organizations; we¹re hoping that this reminder will be
helpful to the WG as it continues to discuss the topic.)
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
-----Original Message-----
From: Jim Bikoff <jbikoff at sgbdc.com>
Date: Wednesday, November 5, 2014 at 1:54 PM
To: "Novoa, Osvaldo" <onovoa at Antel.com.uy>, "'Dorrain, Kristine'"
<kdorrain at adrforum.com>, Paul Keating <Paul at law.es>
Cc: "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
>Agree.
>
>James L. Bikoff
>Silverberg, Goldman & Bikoff, LLP
>1101 30th Street, NW
>Suite 120
>Washington, DC 20007
>Tel: 202-944-3303
>Fax: 202-944-3306
>jbikoff at sgbdc.com
>
>
>-----Original Message-----
>From: gnso-igo-ingo-crp-bounces at icann.org
>[mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Novoa, Osvaldo
>Sent: Wednesday, November 05, 2014 1:50 PM
>To: 'Dorrain, Kristine'; Paul Keating
>Cc: 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
>
>+1
>
>
>
>
> Osvaldo Novoa
>
>Subgerente General
>
>Antel
>
>Guatemala 1075, Nivel 22
>
>Montevideo, 11800
>
>Uruguay
>
>
>
>Tel. +598 2928 6400
>
>Fax. +598 2928 6401
>
>
>
>
>-----Mensaje original-----
>De: gnso-igo-ingo-crp-bounces at icann.org
>[mailto:gnso-igo-ingo-crp-bounces at icann.org] En nombre de Dorrain,
>Kristine Enviado el: Miércoles, 05 de Noviembre de 2014 16:45
>Para: Paul Keating
>CC: gnso-igo-ingo-crp at icann.org
>Asunto: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG
>call on Wednesday 5 November
>
>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
>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 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@
>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)
>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<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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