[Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW draft Deliberations section of WG Initial Report

Tue Dec 6 00:00:31 UTC 2016

Hi folks,

My comments/thoughts on the draft section 4 and section 6 are below:

SECTION 4 COMMENTS

1. page 3 (last paragraph) "…..to prohibit third party use of those
identifiers as trademarks…." -- Of course, it's not a total or
absolute prohibition, so the language of that paragraph should be
altered slightly (i.e. perhaps insert the word "confusing" after
"prohibit" for simplicity).

2. page 4: bottom; we might want to note that we also had a group
conference call with Professor Swaine after his preliminary report

3. page 5, first paragraph, first sentence: perhaps change the word
"opinion" to "research and analysis" (otherwise it suggests that the
conclusions are subject to mere whim); or perhaps add "expert" before
"opinion" to add more gravitas to the statement

4. page 6, first line "Issue Report preparatory" -- should that be
"Issues" (plural), and I'm not sure about the grammar of "preparatory"
in that sentence…it's awkward. Perhaps change "preparatory" to
"prior"??

5. page 6, 2nd paragraph, middle, "…for [the GNSO…" opening square
bracket has no matching closing square bracket…??

6. page 9: in the table, middle column (or 3rd column), we should note
that the Article 6ter registration SUPPLEMENTS existing ability IGOs
to have standing (e.g. via common law or registered marks).

7. page 10: middle column, top row (continuation from prior page) --
the part "but an arbitration option can be created…" -- that's just
*one* of the options (probably the minority view at this point); the
other option, probably the majority view, was to vitiate the UDRP/URS
decision if immunity was attained during a court appeal). So, perhaps
the section in the brackets should be removed, or altered.

8. page 10: second column, bottom row, middle column; like my point #6
above, the 6ter registration *SUPPLEMENTS* existing ability to have
standing by IGOs.

9. page 9 & page 10: (column 1): the IGO proposal is listed as
referencing only "IGO acronymn" -- I assume that should be "IGO *name*
or acronym"??

10. page 11, 2nd row, middle column: "or have trademarked same" --
that's imprecise? I think we mean "or who have registered or
unregistered common law trademarks"

SECTION 6 COMMENTS

A. page 1, 2nd paragraph of "General" section -- the first sentence is
a bit misleading, since it simply says that "the answers to these
questions are no" -- If we look at what the questions were, that
statement is misleading. The first question had a faulty premise that
IGOs and INGOs *don't* already have access to the UDRP and URS. It's
clear that as a working group that we've provided evidence that IGOs
and INGOs *already* do have access to the UDRP and URS. So, the real
PDP was about possible expansion of that access and/or "adjusting the
playing field" in favor of one side or the other.

B. page 3: some formatting issues in bullet point 3 (e.g. extra 'dot'
before "Furthermore" and after "Charter"

C. page 3: middle paragraph, last sentence --- "The WGfurther" --
should add a space after "WG" to make it "The WG further"

D. page 3, bullet point 1 (near bottom): first sentence, perhaps make
it plural for "Final Issues Report"?? (i.e. Issue vs Issues??)

E. page 4, last paragraph of Recommendation #1: it talks about
revisiting our work "if concrete proposals emerge* --- well, we know
that those concrete proposals were made by the IGOs at a late stage;
so, perhaps we need to modify the language of that paragraph a bit?
(i.e. we received the concrete proposals, and analyzed them, etc.,
i.e. in Section 4; although, I still believe that the table in Section
4 comparing the recommendations should perhaps be moved to *after*
section 6, to make sense chronologically; i.e. we analyzed/contrasted
the IGOs Small Group proposal *after* our own recommendations).

F. page 4, Recommendation 2, last sentence -- really it's for the
benefit of panelists, registrants, *and* potential IGO complainants.

G. page 5, 2nd last paragraph, last sentence "…in the absence of their
possessing trademark or common law rights…." I think the word
"registered" belongs before "trademark" (i.e. the common law rights
are *unregistered* *trademark* rights; i.e. BOTH are trademark rights,
one set registered, the other set are common law).

H. page 9, further discussion of option 2: for the 3rd bullet point
(crossing into the following page), perhaps it can be expanded, to
highlight the fact that we know that UDRP decisions have been
successfully overturned in the courts on numerous occasions, even when
there were unanimous 3-panelist UDRP decisions. Furthermore, allowing
mandatory and binding arbitration without recourse to the court
creates the circumstances for a permanent DIVERGENCE of jurisprudence
between the arbitration bodies and the national laws or courts. i.e.
the existence of the appeal mechanism to national courts is of
critical importance as a check and balance on the entire UDRP/URS
system, because it ensures that the UDRP/URS cannot perpetually expand
to give rights that are greater than those that exist in the national
courts (which would then create forum shopping, where complainants
would use the UDRP/URS to obtain relief that they could never achieve
in the courts). Without these checks and balances, the power of
"rogue" panelists/providers and the incentives for forum shopping grow
considerably, undermining the purpose and integrity of the entire
system.

I. page 14, last paragraph of Recommendation #4 (i.e. directly above
Recommendation #5); as discussed in our last conference call, the
paragraph needs to be softened somewhat, i.e. the "IGOs will have to
submit to" line is not accurate, given that we've identified
workarounds for the IGOs regarding assignee/licensee bringing the
UDRP/URS, in order to shield the IGO.

Sincerely,

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

On Thu, Dec 1, 2016 at 2:59 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
> Thank you for these documents, Mary.
>
>
>
> To reprise some decisions made on today’s WG call:
>
> ·         On our next call of December 8th we are aiming to complete and
> approve the revised draft of Section 6 and to perhaps do the same, or at
> least get very close, in regard to the new draft of Section 4. Therefore,
> all WG members are asked to review those attachments and forward any
> comments and proposed revisions to the WG email list no later than Tuesday,
> 12/6 in order to give staff sufficient time to prepare new versions for the
> 12/8 call.
>
> ·         On the 12/15 call we will wrap up work on Section 4 (if not
> already done) and review other “boilerplate” report sections that shall be
> forthcoming from staff over the next two weeks.
>
> ·         Depending on the state of our work and holiday considerations, we
> will meet one final time this year on either 12/22 or 12/29. The aim for
> that meeting is to approve the final draft of the Preliminary Report and
> publishing it for public comment.
>
> ·         Presuming that the draft is published for comment in early
> January, the 40 day comment period will end in mid-February. If a
> significant number of public comments are received prior to the end of the
> comment period we may hold an interim WG meeting to review and discuss those
> comments. Following the close of the comment period we will hold several
> meetings to consider them and discuss any proposed adjustments to the
> document. While recognizing that it may not be feasible, we will aim to
> publish a Final report just prior to the Helsinki meeting. If that is not
> possible then we anticipate publication of the Final Report in the late
> March to mid-April timespan.
>
>
>
> Let me know if you have any comments or questions. Please take some time
> over the next few days to carefully review Sections 4 and 6 – our wok is
> almost done and we aim to publish the highest quality document possible on
> this complex subject.
>
>
>
> Thanks and best regards,
>
> 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] On Behalf Of Mary Wong
> Sent: Tuesday, November 29, 2016 1:12 PM
> To: gnso-igo-ingo-crp at icann.org
> Subject: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW draft
> Deliberations section of WG Initial Report
>
>
>
> Dear all,
>
>
>
> The proposed agenda for our Working Group meeting this Thursday is as
> follows:
>
>
>
> 1.       Roll call and updates to Statements of Interest
>
> 2.       Review of discussions at ICANN57 – GAC Communique and WG open
> session
>
> 3.       Confirm WG comments in draft Initial Report concerning its review
> of the IGO Small Group Proposal
>
> 4.       Confirm intended date of publication of Initial Report and other
> milestones leading to the Final Report
>
> 5.       Any other business
>
>
>
> For #2, here is the link to the GAC Communique:
> https://gacweb.icann.org/download/attachments/27132037/GAC%20ICANN%2057%20Communique.pdf?version=6&modificationDate=1478668059355&api=v2,
> and to the transcript of the Working Group session at ICANN57:
> http://schd.ws/hosted_files/icann572016/c3/Transcript%20IGO-INGO%20CRP%20Hyderabad%2007%20Nov%202016.pdf.
> We note that a link to the slides that were used at that WG session had been
> circulated previously (see below).
>
>
>
> In addition, for #2, WG members may wish to consider the question that was
> raised by the representative of the United States Patent and Trademark
> Office (USPTO) who attended the WG open session: “whether [standing kicks in
> at the time that a notification is submitted to WIPO or whether it kicks in
> once it's disseminated to all of the Paris Convention member countries and
> whether they decide whether or not to reject or not reject that
> notification.”
>
>
>
> For #3, please find attached an initial draft of what will be Section 4
> (Deliberations of the PDP Working Group) of our Initial Report (where
> Section 6 – which we have been discussing – contains our Preliminary
> Recommendations). As noted previously, Section 4 complements Section 6 by
> providing both the process background and related narrative to the actual
> text of the preliminary recommendations.
>
>
>
> For purposes of the call this week, staff suggests a focus on Section 4.4
> (where the process background and the WG’s conclusions on the Small Group
> Proposal are described and tabulated).
>
>
>
> We are also attaching a clean copy of the latest version of Section 6,
> updated following the last WG call before ICANN57. Please note that in the
> interests of getting the draft Deliberations document out to everyone as
> soon as we could, staff has not yet done a full sweep through the Section 6
> document to spot overlaps and gaps.
>
>
>
> Thanks and cheers
>
> Mary
>
>
>
> From: Mary Wong <mary.wong at icann.org>
> Date: Tuesday, November 8, 2016 at 12:23
> To: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Subject: Slides from the Working Group's open community discussion at
> ICANN57
>
>
>
> Dear all,
>
>
>
> The slides from our Working Group’s open session yesterday at ICANN57, where
> our likely initial recommendations were presented to the community, are
> available here:
> http://schd.ws/hosted_files/icann572016/35/Updated%20IGO-INGO%20CRP%20WG%20Slides%20-%20ICANN57.pdf.
>
>
>
> Once the transcript and recording are published on the ICANN57 meeting
> website, we will provide a link to them and the slides from our Working
> Group wiki page.
>
>
>
> Thanks and cheers
>
> Mary
>
>
>
>
>
> Mary Wong
>
> Senior Policy Director
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
> Email: mary.wong at icann.org
>
> Telephone: +1-603-5744889
>
>
>
>
>
> ________________________________
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2016.0.7859 / Virus Database: 4664/13314 - Release Date: 10/30/16
> Internal Virus Database is out of date.
>
>
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp