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

Wed May 11 15:13:12 UTC 2016

Thanks for the feedback, Paul.

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-----Original Message-----
From: gnso-igo-ingo-crp-bounces at icann.org [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Keating
Sent: Wednesday, May 11, 2016 6:17 AM
To: gnso-igo-ingo-crp at icann.org
Subject: Re: [Gnso-igo-ingo-crp] Swaine report -- questions/comments

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.

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