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

Wed Mar 18 10:39:56 UTC 2015

Mary, please kindly include this in the file for the WG and circulate to
the extent this email does not reach all participants.

I agree with George.

The most striking thing about both the research report and the proposed
letter was that it used as foundational points, asserted "facts" that were
not substantiated.  Examples:

1.	Those raised by George below.

2.	Statements that IGOs have complained about the current set up with
Mutual Jurisdiction.  I have seen this phrase before but have never seen a
listing of those NGOs and INGOs who have raised this issue.  Before
embarking on anything we should ask for those complaining parties to be
identified.  THEN we should compare that number and type with the universe
of IGOs/NGOs to see if this is approaching a serious issue.

3.	Limitation of issues.  The issue is not merely jurisdictional immunity
but also includes liability immunity.  In any action brought by a losing
respondent, the respondent (now the plaintiff) has the ability to claim
damages, including attorneys' fees and costs.

	A.	Jurisdictional Immunity.  In those US courts having dealt with this
issue (including parvi.org (see attached complaint, Default Motion and
Final Judgment).  The judgment resulted in a 100K for interference and 27K
for attorneys' fees and costs.  The City of Paris (though not an NGO/INGO
has a long history of such behavior.

	B.	Liability immunity.  RECOVERY of any judgment is subject to specific
collection rules that vary by jurisdiction.  For example, in the US, the
FISA governs collection as well and requires an additional level of
service of the judgment so that the defendant (now judgment debtor) can
assert immunity claims as to itself or any specific assets.

	C.	Tied to the above, we  have no real understanding of how litigious the
NGOs/INGOs have been.  A search of the US litigation (via PACER) would be
very time-consuming but doable by ICANN Staff.  This would obviously not
answer the issue as to non-US jurisdictions.  I thus believe that any
letter should request not only the identity of the complaining NGOs/INGOs,
but also request that they provide a listing of any and all litigation or
other quasi-judicial proceedings they have been involved in.  To the
extent ICANN staff, the ICANN legal dept. or the GAC is aware (or can find
out) the answer should be given as to any other NGO/INGO
litigation/quasi-litigation activities as well.

Without the above it is impossible to understand the real nature of the
asserted "problem".  Unless the problem is indeed prevalent, I would
suggest that any change is unwarranted given the potential of disruption
and cost of implementation (again remembering that the UDRP is based upon
contract and ANY change requires modification of many contracts at many
levels (Registry?ICANN, Registry/Registrar and Registrar/Registrant).

4.	The entire purpose of the UDRP was premised on the foundational stone
that the UDRP was not intended to grant greater rights in the cyber-world
than those which existed in the "real" world (Reference WIPO:  Final
Report of the WIPO Internet Domain Name Process - copy attached).  As a
result I see no reason to provide any particular participant in the UDRP
with any greater rights or privileges then they would have in the "real"
world.  In the real world, an NGO/INGO must pursue legal claims of
trademark infringement using the judicial process.  To do so they must
weigh the importance of asserting their "rights" against the risk that
such assertive behavior entails.

Thus, the proposed letter IMHO requires substantial revision to include
these types of comments so that we are able to  obtain a clear picture in
the form of any response and not merely a generalized statement of desires
that are unsupported by any factual or legal basis.

Regards,

Paul Keating

On 3/17/15 11:57 PM, "George Kirikos" <icann at leap.com> wrote:

>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 ICANN¹s
>> efforts to work through the matter. The cover note will include the WG¹s
>> thanks to the IGO small group for its January response, along with an
>>update
>> on the WG¹s current thinking on the ³standing² 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
>>WG¹s
>> attention last week.
>>
>> Finally, please note that the GNSO Council has been updated on the WG¹s
>> 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 WG¹s thinking that the list of IGOs in the WIPO
>>database
>> who requested Article 6ter protection should be the list upon which the
>>WG¹s
>> recommendations (if any) will be based, especially for ³standing² 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 Council¹s 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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>> Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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