[Gnso-igo-ingo-crp] Swaine report -- questions/comments

[Paul Keating]

All,

My comments are limited to the following:

1.	Contractual analysis is missing.

Has the professor considered a contractual analysis in the context of an
IGO's assertion of immunity u under post-UDRP legal proceedings?
My point is that the UDRP itself exists as a matter of contract.  The
consideration being received by the registrant is a collection of things
including the rights under the UDRP -
one of which is the right to file a post-UDRP action in the Mutual
Jurisdiction.  One could conclude that the assertion of immunity by (or
the granting of immunity to) IGOs would remove
this part of the consideration rendering the entirety of the Registration
Agreement (or at least that part which pertains to the UDRP) open to being
invalidated.

I would appreciate the Professor considering the impact of the above upon
the immunity issue both in terms of his analysis of whether IGO immunity
can be considered AND the impact of immunity upon the UDRP as a
contractual provision within the RA.



2.	non-neutral language, for example,

"curing the immunity concession presently made by IGOs" (last
paragraph of page 3) implies (a) the contractual term is somehow
defective (it's not), and (b) that it's a "concession" (a more
appropriate word might be "term"). This happens throughout the
document (I'm not going to point out each occurrence). It would be
like calling the filing fees of the UDRP a "concession made by IGOs"
-- it's not, it's just a term that applies to all complainants, with
IGOs being no exception.


Specifically, I am concerned that the opinion's use of such language
implies that the UDRP is somehow imposing a burden upon the IGOs.  In
reality, the UDRP was created as a streamlined system to avoid only the
complexities, costs and delays inherent with formal litigation.

Rather than altering each instance, would the Professor consider including
ann express confirmation that the "concession" )(or other difficulties
faced by the IGO) is no different than the "concession" (or other
difficulties) the IGO would be required to consider in order to undertake
any enforcement activities relative to its trademark.

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
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Skype: Prk-Spain

email:  Paul at law.es

 

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