[Gnso-igo-ingo-crp] Follow up questions for IGO small group on sovereign immunity

Tue Mar 17 22:57:26 UTC 2015

There are more than simply 2 instances of IGOs bringing UDRPs. In
particular, I managed to find that the Bank for International
Settlements has five (5) other UDRPs that weren't referenced, namely:

(1) bisettlement.com --
http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0571.html

(2) bfisonline.net --
http://www.wipo.int/amc/en/domains/decisions/html/2004/d2004-0575.html

(3) bisonlinedept.com --
http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0987.html

(4) bankforinternationalsettlement.com -
http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0986.html

(5) bfis.net --
http://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0984.html

I also found another one that was brought, and then terminated, for
"United States Fund for UNICEF", in relation to unicefonline.net/org:

(6) http://www.udrpsearch.com/wipo/d2007-1920

(both domains appear to have been transferred to the US Fund for UNICEF)

Of course, there was also that UNITAID case we've discussed before,
brought by the law firm as a proxy:

(7) http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2012-1922

involving unitaid.biz/com/info/net/org.

Also, the United Nations World Food Programme brought a UDRP that was
terminated:

(8) http://www.udrpsearch.com/wipo/d2005-0099
http://www.wipo.int/amc/en/domains/decisionsx/list.jsp?prefix=D&year=2005&seq_min=1&seq_max=199

regarding wfpafrica.com, wfpasia.com, wfpenvironment.com, wfpnews.com
worldfoodprogram.com, worldfoodprogrammes.com

(seems some of those domains are now available!)

Given the increase in the number of discovered cases, one might need
to rethink the use of phrases like "limited instances" (first
paragraph of page 2), or "rare decisions" (last paragraph of page 2).
Given the small number of IGOs in relation to all potential
complainants, it might turn out that they've filed a statistically
proportionate number of cases, all things considered (which might
inform the question as to whether they've actually been deterred from
filing cases, as they suggest -- statistics might prove otherwise).

As for the questions on the list, I think Question #5 isn't one where
the IGOs can give an authoritative answer -- they're not the
individuals being prejudiced. IGOs should should only be asked
questions that are within their knowledge. Similarly #6 isn't
something they would be able to answer -- it's really something for us
to answer (like #5).

One might expand on #4, in particular ask directly about IGOs
initiating their own actions in national courts, whether they *ever*
do that themselves -- we already know of at least 2 cases, as
discussed previously:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2015-March/000302.html

They should give us more examples where they've brought cases (e.g. in
other countries). I would be amazed if those were the only 2 cases
ever brought (indeed, I'd be skeptical if they couldn't produce
others). Why should IGOs be treated differently, if they've brought
cases themselves before the courts?

One might also ask in relation to Paul Keating's idea that if the
nature of the mutual jurisdiction (waiver of immunity) was expressly
made limited, i.e. circumscribed to apply *only* to the domain name
under dispute for IGOs, and nothing else (i.e. not to attack the
assets of the IGOs), whether that accommodates the concerns of the
IGOs.

For footnote #5, one might want to directly reference the UNITAID
case, in case the IGOs aren't aware of that technique.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Tue, Mar 17, 2015 at 2:04 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear WG members,
>
> Please find attached a draft note addressed to the IGO small group that was
> prepared by the WG co-chairs and staff, based on recent WG discussions and
> research done to date on the sovereign immunity issue. The co-chairs propose
> that following review and approval from the WG, they send these questions
> along with a cover note to the IGO small group, in the hope that the IGO
> representatives will continue to be responsive and helpful to ICANN’s
> efforts to work through the matter. The cover note will include the WG’s
> thanks to the IGO small group for its January response, along with an update
> on the WG’s current thinking on the “standing” issue and Article 6ter of the
> Paris Convention.
>
> Please reply to the list via email with any comments you or your groups may
> have on the document as soon as you can. For your information, you will see
> from the draft that we have added another UDRP decision to the World Bank
> example that George provided earlier in our deliberations – this second case
> concerns the Bank for International Settlements, which also is on the GAC
> list of IGOs dating from 2013. I attach also an updated version of the staff
> Briefing Note on sovereign immunity and IGOs that was circulated last week –
> this update adds a reference to the Canadian statute that the Canadian
> Supreme Court relies on in the NAFO case which George brought to the WG’s
> attention last week.
>
> Finally, please note that the GNSO Council has been updated on the WG’s
> progress during our recent face-to-face facilitated meeting in Singapore,
> and will take up at its meeting on Thursday the specific question of whether
> they agree with the WG’s thinking that the list of IGOs in the WIPO database
> who requested Article 6ter protection should be the list upon which the WG’s
> recommendations (if any) will be based, especially for “standing” and in
> principled preference to the original GAC list, which contains IGOs selected
> based on fulfillment of the .int eligibility criteria and which was the list
> that our WG was chartered to discuss. We will provide the WG with a further
> update following the Council’s deliberations on this point later this week.
>
> 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
>
>
>
>
>
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