[Gnso-igo-ingo-crp] FOR REVIEW/DISCUSSION: Updated Sections 4 and 6 of the draft Initial Report

Thu Dec 8 16:18:28 UTC 2016

The new language in the edits at the top of page 9 re: no GAC members
as part of this PDP may not be correct, since Gary Campbell is a
member of this PDP and lists his affiliation as "GAC", see:

https://community.icann.org/pages/viewpage.action?pageId=48347895

Sincerely,

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


On Wed, Dec 7, 2016 at 7:56 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
> Apologies for the late transmission, but my very careful review and markup
> of proposed section 4 is attached. Note in particular some extensive new
> text on pp.2-3 that I believe was advisable to buttress the draft document.
>
>
>
> I realize that staff may not be able to fully integrate this with the draft
> sent by Mary a few hours ago before tomorrow’s call, but we can always
> conclude our consideration of Section 4 on the call next week.
>
>
>
> I look forward to speaking with everyone tomorrow as we approach the
> conclusion of this major phase of our work.
>
>
>
> Best to all, 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: Mary Wong [mailto:mary.wong at icann.org]
> Sent: Wednesday, December 07, 2016 4:12 PM
> To: Jay Chapman; Phil Corwin
> Cc: gnso-igo-ingo-crp at icann.org
> Subject: FOR REVIEW/DISCUSSION: Updated Sections 4 and 6 of the draft
> Initial Report
>
>
>
> Dear all,
>
>
>
> Please find attached, in redlined format, updated versions of both Section 4
> (Deliberations) and Section 6 (Recommendations) of our Working Group’s draft
> Initial Report. These updates are the suggested changes, edits and comments
> made by George, Phil and Jay. Please be so kind as to review the updates for
> discussion on our call this Thursday, when we will aim to finalize the text
> for these two important sections.
>
>
>
> Following the Thursday discussion, staff will incorporate all the agreed
> updates into a full draft Initial Report, which we hope to circulate to
> everyone for your review by early next week. This will allow us to have a
> final call on 22 December, following which the aim will be to publish the
> Initial Report for public comment in early January.
>
>
>
> We will attempt to address any remaining formatting and typographical errors
> when we compile the full draft Initial Report for circulation.
>
>
>
> 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
>
>
>
>
>
>
>
> From: <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Jay Chapman
> <jay at digimedia.com>
> Date: Wednesday, December 7, 2016 at 04:44
> To: Phil Corwin <psc at vlaw-dc.com>
> Cc: "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
> Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW
> draft Deliberations section of WG Initial Report
>
>
>
> Attached are my revisions for sections 4 & 6...
>
>
> Sincerely,
>
> Jay
>
>
> This e-mail & any attachment(s) is(/are) confidential & only for the
> intended recipient(s).  If you are not an intended recipient, please
> immediately notify me, delete this e-mail & all attachment(s).
>
>
>
> On Mon, Dec 5, 2016 at 6:59 PM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
> Attached are my (mostly) stylistic and grammatical revisions of Section 6.
>
> 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
>
>
> -----Original Message-----
>
> From: gnso-igo-ingo-crp-bounces at icann.org
> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Phil Corwin
> Sent: Monday, December 05, 2016 7:04 PM
> To: George Kirikos; gnso-igo-ingo-crp at icann.org
> Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW
> draft Deliberations section of WG Initial Report
>
> Thanks George.
>
> Other WG members who wish to submit comments or proposed edits should do so
> within the next 24 hours.
>
> Best to all, 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
>
>
> -----Original Message-----
> From: gnso-igo-ingo-crp-bounces at icann.org
> [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
> Sent: Monday, December 05, 2016 7:01 PM
> To: gnso-igo-ingo-crp at icann.org
> Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW
> draft Deliberations section of WG Initial Report
>
> 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/[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%205[gacweb.icann.org]
>> 7%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[schd.ws].
>> 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[schd.ws].
>>
>>
>>
>> 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
>>
>>
>>
>>
>>
>> ________________________________
>>
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