[Gnso-igo-ingo-crp] On creating a UDRP-like procedure for IGOs, and on 6ter processes

Mary Wong mary.wong at icann.org
Thu Nov 6 18:18:52 UTC 2014 

And here is the link to the draft procedure created in 2007:
https://community.icann.org/download/attachments/48347918/Staff%20Draft%20Te
xt%20for%20IGO%20DRP%20%26%20Rules%20-%20Sept%202007.pdf?version=1&modificat
ionDate=1410802165000&api=v2. It can also be accessed from our WG¹s
Background Documents page, along with the other ³historical² information and
relevant materials (which we will be adding to as we obtain more):
https://community.icann.org/x/DrvhAg


From:  Mary Wong <mary.wong at icann.org>
Date:  Thursday, November 6, 2014 at 12:27 PM
Cc:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  Re: [Gnso-igo-ingo-crp] On creating a UDRP-like procedure for
IGOs, and on 6ter processes

> Hello again everybody,
> 
> I just wanted to follow up on Paul¹s, Petter¹s and George¹s recent emails with
> a few additional clarifications.
> 
> APPLICABILITY TO EXISTING (LEGACY) DOMAINS
> * Our WG charter (based on the scoping done in the Preliminary and Final Issue
> Reports) acknowledges that the URS is not currently a Consensus Policy. As
> such, it only applies to new gTLDs. The UDRP (as a Consensus Policy) is
> binding on all ICANN Contracted Parties via the incorporation clause found in
> all registry and registrar agreements (new and existing). In considering a
> dispute resolution procedure (DRP) ­ whether a ³modified UDRP/URS² or a ³new²
> DRP ­ our WG will therefore have to bear in mind that if this is in fact the
> final recommendation(s), it may be in the form of a Consensus Policy binding
> on all contracted parties.
> UDRP vs URS vs New DRP
> * Our Charter also contemplates that we may distinguish between a UDRP and
> URS, so for instance the WG could decide to only amend one but not the other
> (among other options). This is a topic we will need to put on the WG agenda at
> a future meeting.
> * In the previous GNSO scoping effort (2007), draft language was in fact
> prepared for a possible separate DRP. We have included this document on the WG
> wiki:
> * Our WG Charter also contemplates that should a separate DRP be recommended,
> it must be narrowly tailored and applicable only to the protected
> organizations.
> ARTICLE 6ter PROCESS
> * As George and Paul have noted previously, protection under 6ter is not
> automatic, and even after the notification is filed a country/government can
> object to it. My understanding is that in many jurisdictions, 6ter protection
> is effective only if there is national law effectuating 6ter protection in
> that jurisdiction (e.g. by requiring a trademark registration or other form of
> statutory protection). The WG will likely want to address this as part of its
> discussion on standing in relation to any form of amended or new DRP.
> CREATING NEW LEGAL RIGHTS
> * This problem was acknowledged early on in the WIPO-2 Process (2001-2).
> However, do note that 6ter itself contains limitations in that: (1) protection
> of the IGO name/acronym is against use without authorization as a trademark or
> as elements of trademarks; AND (2)  the use is of such a nature as to either
> suggest to or mislead the public as to a possible connection between the user
> and the organization concerned. In considering whether or not to amend the
> UDRP/URS or develop a new DRP, these limitations may be of assistance to our
> WG.
> * It is also open to the WG to develop specific and additional express
> defenses for any DRP (as was spelled out in the URS, for example).
> I realize these do not answer the many excellent questions that have been
> raised (nor are they supposed to), and do not address the tricky issues of
> immunity/appeal or costs, but I hope they are helpful as background
> nonetheless.
> 
> 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
> 
> 
> 
> 
> 
> From: Paul Keating <paul at law.es>
> Date: Thursday, November 6, 2014 at 8:47 AM
> To: "petter.rindforth at fenixlegal.eu" <petter.rindforth at fenixlegal.eu>
> Cc: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of
> Letter to Council regarding GAC Communique
> 
>> Petter,
>> 
>> Creating some UDRP-like CRP for the domains at issue would create huge
>> issues.  In addition to issues noted by others:
>> 
>> 1.  It would apply on a domain level basis crossing all extensions.
>> 
>> 2.  It would require a change to the RAA and RA for each extension.
>> 
>> 3.  All of these Curative Rights mechanisms exist ONLY as a matter of
>> contract (ICANN - Registrar (RAA) and Registrar - Registrant (RA)).    Thus,
>> any new system could not, as a matter of contract law, apply to existing
>> domains until a new RAA is signed with every registrar and a new RA is signed
>> with each registrant.  Thus, a current registration for 10 years would mean
>> the domain was exempt from the new CRP for 10 years until the domain was
>> renewed.
>> 
>> 4.   The protection here exists ONLY as between members of the Paris
>> Convention and/or WTO.
>> 
>>         How would it apply to a registrant holding a registration per an
>> agreement subject to the laws of a non-PC or non-WTO member state?
>> 
>>         How would it apply to a registrant holding a registration per an
>> agreement subject to the laws of a country who had objected to the particular
>> name/symbol being included under 6ter?
>> 
>> 5.  Because the UDRP (and other CRPs) already apply "as to all" domains
>> covered there under (e.g UDRP applies to ALL .COM domains), an amendment to
>> the UDRP (and other CRPs) is required to exclude its application to domains
>> falling under 6ter.
>> 
>> 6.  How is the registrar or,registrant to know that the new CRP is to apply
>> to any particular domain?  E.g. Is "expletive+IOC" included?  What about
>> "olympicburgers.com <http://olympicburgers.com> " or
>> "OlympicPeninsulaCampingSites.com <http://OlympicPeninsulaCampingSites.com>
>> "?  It becomes even worse with acronyms.
>> 
>> I revert to something George K said in a prior email.  ICANN has neither the
>> right nor the obligation to create new legal rights.  This was true during
>> the heady drafting days of the UDRP and remains the case today IMHO.
>> 
>> The more I look the more I feel that neither the GAC nor the IGOs have really
>> thought this through.  I fully understand that many of the IGOs both do great
>> things and unlike the RC or IOC have very little money.  However, and at the
>> risk of sounding crass,  it seems more of a case of late-comers to the party
>> wanting to be relieved of consequences of their tardiness.
>> 
>> This begs us to consider other alternatives such as informing them of the
>> existence of .INT or even the possible creation of .IGO and advising that any
>> new CRP be limited to those extensions.
>> 
>> Regards, 
>> 
>> Paul Keating
>> 
>> On 06 Nov 2014, at 10:11 am, Petter Rindforth
>> <petter.rindforth at fenixlegal.eu> wrote:
>> 
>>> I am not sure if GAC as such has considered this to 100%, but I am sure that
>>> IGO¹s wants to avoid any changes of the UDRP.
>>> But, to refer to our previous discussion of ³new CRP vs modified version of
>>> the UDRP², what we talk about (if not add/change to the current UDRP) is not
>>> to create a completely new dispute resolution procedure for IGO¹s, but
>>> rather ³a modified version of UDRP² that will get a separate name and
>>> Regulation.
>>> Our ³IGOUDRP² can therefore well be the existing UDRP with some minor
>>> changes related to IGO¹s, and perhaps formally limited to IGO complainants
>>> if they are officially listed as IGO¹s  - to avoid other
>>> organizations/companies to claim that they can use this ³new² system.
>>>  
>>> / Petter
>>> 
>>> 
>>> -- 
>>> Petter Rindforth, LL M
>>> 
>>> Fenix Legal KB 
>>> Stureplan 4c, 4tr
>>> 114 35 Stockholm
>>> Sweden 
>>> Fax: +46(0)8-4631010
>>> Direct phone: +46(0)702-369360
>>> E-mail: petter.rindforth at fenixlegal.eu
>>> www.fenixlegal.eu <http://www.fenixlegal.eu>
>>> 
>>> 
>>> NOTICE 
>>> This e-mail message is intended solely for the individual or individuals to
>>> whom it is addressed. It may contain confidential attorney-client privileged
>>> information and attorney work product. If the reader of this message is not
>>> the intended recipient, you are requested not to read, copy or distribute it
>>> or any of the information it contains. Please delete it immediately and
>>> notify us by return e-mail.
>>> Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu>
>>> Thank you
>>> 
>>> 
>>> 5 november 2014, Phil Corwin <psc at vlaw-dc.com> skrev:
>>>> 
>>>> I guess we could drill down a bit on the substance/procedures matter ­
>>>> although my guess is that they haven¹t even thought about it, and were
>>>> meaning to say that they want a new CRP for IGOs rather than any modified
>>>> version of the UDRP.
>>>> 
>>>>  
>>>> 
>>>> What do others think?
>>>> 
>>>>  
>>>> 
>>>> 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: Paul Tattersfield [mailto:gpmgroup at gmail.com]
>>>> Sent: Wednesday, November 05, 2014 5:13 PM
>>>> To: Phil Corwin
>>>> Cc: Mason Cole; gnso-igo-ingo-crp at icann.org
>>>> Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of
>>>> Letter to Council regarding GAC Communique
>>>> 
>>>>  
>>>> 
>>>> Mason's wording is very good. Do you guys think it would be worth building
>>>> on Mason¹s wording to try and ascertain if the GAC's proposed prohibition
>>>> on UDRP changes is for substantive changes only or if they are seeking to
>>>> prohibit procedural changes too?
>>>> 
>>>>  
>>>> 
>>>> Yours sincerely,
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>> Paul
>>>> 
>>>>  
>>>> 
>>>> On Wed, Nov 5, 2014 at 9:49 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
>>>> 
>>>> Mason:
>>>> 
>>>>  
>>>> 
>>>> Given that you have the delicate task of interfacing with the GAC, I think
>>>> your proposed minor modifications are fine.
>>>> 
>>>>  
>>>> 
>>>> Best, Philip
>>>> 
>>>>  
>>>> 
>>>> Philip S. Corwin, Founding Principal
>>>> 
>>>> Virtualaw LLC
>>>> 
>>>> 1155 F Street, NW
>>>> 
>>>> Suite 1050
>>>> 
>>>> Washington, DC 20004
>>>> 
>>>> 202-559-8597 <tel:202-559-8597> /Direct
>>>> 
>>>> 202-559-8750 <tel:202-559-8750> /Fax
>>>> 
>>>> 202-255-6172 <tel:202-255-6172> /cell
>>>> 
>>>>  
>>>> 
>>>> Twitter: @VlawDC
>>>> 
>>>>  
>>>> 
>>>> "Luck is the residue of design" -- Branch Rickey
>>>> 
>>>>  
>>>> 
>>>> From: Mason Cole [mailto:mason at donuts.co]
>>>> Sent: Wednesday, November 05, 2014 3:50 PM
>>>> To: Phil Corwin
>>>> Cc: gnso-igo-ingo-crp at icann.org
>>>> Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of
>>>> Letter to Council regarding GAC Communique
>>>> Importance: High
>>>> 
>>>>  
>>>> 
>>>> Phil --
>>>> 
>>>>  
>>>> 
>>>> In my capacity as liaison, let me suggest an edit or two in the bullet
>>>> point in question that might give us better luck in getting some useful
>>>> information from the GAC:
>>>> 
>>>>  
>>>> 
>>>> In regard to the issue of potential amendment of the UDRP ­ It would be
>>>> instructive to know the GAC¹s rationale for opposing any UDRP amendments as
>>>> a means of providing IGOs with access to curative rights. Further, in
>>>> opposing such amendments, does the GAC thus advise the GNSO to preclude any
>>>> possible change to its "Mutual Jurisdiction" provisions to address specific
>>>> sovereign immunity concerns of IGOs? Finally, if it is the GAC¹s position
>>>> that an entirely new curative rights mechanism must be created,  is it the
>>>> GAC's understanding that the protections afforded to qualifying IGOs under
>>>> Article 6ter of the Paris Convention would be the criteria for establishing
>>>> standing under any dispute resolution procedure that may apply to IGOs?
>>>> 
>>>>  
>>>> 
>>>> On Nov 5, 2014, at 11:56 AM, Phil Corwin wrote:
>>>> 
>>>>  
>>>> 
>>>> WG members:
>>>> 
>>>>  
>>>> 
>>>> Please find attached a revised draft letter to the GNSO Council regarding
>>>> the LA GAC Communique that reflects our discussion earlier today.
>>>> 
>>>>  
>>>> 
>>>> The only changes are to the second bullet point on page 3.
>>>> 
>>>>  
>>>> 
>>>> PLEASE LET US KNOW IF THESE CHANGES ARE ACCEPTABLE WITHIN THE NEXT 24
>>>> HOURS. WE WANT TO FORARD THIS LETTER TO THE COUNCILL ASAP TO MAXIMIZE THE
>>>> POSSIBILITY THAT IT WILL BE ADDED TO THE AGENDA FOR ITS MEETING NEXT
>>>> THURSDAY.
>>>> 
>>>>  
>>>> 
>>>> Thanks in advance.
>>>> 
>>>>  
>>>> 
>>>> Best, Philip
>>>> 
>>>>  
>>>> 
>>>> Philip S. Corwin, Founding Principal
>>>> 
>>>> Virtualaw LLC
>>>> 
>>>> 1155 F Street, NW
>>>> 
>>>> Suite 1050
>>>> 
>>>> Washington, DC 20004
>>>> 
>>>> 202-559-8597 <tel:202-559-8597> /Direct
>>>> 
>>>> 202-559-8750 <tel:202-559-8750> /Fax
>>>> 
>>>> 202-255-6172 <tel:202-255-6172> /cell
>>>> 
>>>>  
>>>> 
>>>> Twitter: @VlawDC
>>>> 
>>>>  
>>>> 
>>>> "Luck is the residue of design" -- Branch Rickey
>>>> 
>>>>  
>>>> 
>>>> <ICANN-IGO_INGO_CRWG-Letter to GNSO
>>>> Council-LA_GAC_Advice-draft#2.docx>________________________________________
>>>> _______
>>>> Gnso-igo-ingo-crp mailing list
>>>> Gnso-igo-ingo-crp at icann.org
>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>> 
>>>>  
>>>> 
>>>> Mason Cole 
>>>> 
>>>> VP Communications & Industry Relations
>>>> 
>>>> Donuts Inc.
>>>> 
>>>> ŠŠŠŠŠŠŠŠŠŠŠŠ
>>>> 
>>>> ŠŠ
>>>> 
>>>> ŠŠ
>>>> 
>>>> mason at donuts.co
>>>> 
>>>> Ofc +1 503 908 7623 <tel:%2B1%20503%20908%207623>
>>>> 
>>>> Cell +1 503 407 2555 <tel:%2B1%20503%20407%202555>
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>>  
>>>> 
>>>> 
>>>> No virus found in this message.
>>>> Checked by AVG - www.avg.com <http://www.avg.com>
>>>> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14
>>>> Internal Virus Database is out of date.
>>>> 
>>>> 
>>>> _______________________________________________
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>>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>>> 
>>>>  
>>>> 
>>>> 
>>>> No virus found in this message.
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