[Gnso-igo-ingo-crp] Attendance and mp3 / IGO-INGO Curative Rights Protection PDP WG Meeting - Thursday, 08 September 2016 at 17:00 UTC
Yesim Nazlar
yesim.nazlar at icann.org
Fri Sep 9 04:42:08 UTC 2016
Dear All,
Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 08 September 2016 at 17:00 UTC at: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-08sep16-en.mp3
On page: https://gnso.icann.org/en/group-activities/calendar#sep
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page:
http://gnso.icann.org/en/group-activities/calendar
Attendees:
George Kirikos - Individual
Petter Rindforth - IPC
Phil Corwin - BC
Jay Chapman – Individual
Paul Tattersfiled – Individual
Mason Cole – RySG
Lori Schulman - IPC
Gary S. Campbell - GAC
Apologies:
David Maher - RySG
ICANN staff:
Mary Wong
Steve Chan
Berry Cobb
Dennis Chang
Yeşim Nazlar
** Please let me know if your name has been left off the list **
Mailing list archives:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/>http://mm.icann.org/pipermail/gnso-igo-ingo-crp/
Wiki page:
https://community.icann.org/x/37rhAg
Thank you.
Kind regards,
Yeşim Nazlar
-------------------------------
Adobe Connect chat transcript for Thursday, 08 September 2016
Yesim Nazlar:Welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 08 September 2016 at 17:00 UTC
Yesim Nazlar:Agenda: https://community.icann.org/x/UxmsAw
George Kirikos:Hi folks!
Paul Tattersfield:Hi
George Kirikos:Hey Paul.
Paul Tattersfield:How's things in Canada?
George Kirikos:Great here, thanks. How are you today?
Paul Tattersfield:Great thanks, were having an Indian Summer so it's a good time of year
Philip Corwin:Hello all
Mary Wong:First things first, welcome back Steve Chan from medical leave!
George Kirikos:Nice to hear things went well, Steve.
Steve Chan:Thanks Phil, Mary, everyone!
Mason Cole:Good to have you back, Steve!
George Kirikos:Sounds good, Phil.
George Kirikos:#1 shouldn't be controversial.
Jay Chapman:#1 good
George Kirikos:We're just focusing on the BOLD language, for now.
Jay Chapman:i do have questions about the final paragraph of the content for rec #1, but sounds like we're discussing this later
Mary Wong:Yes, that's right, Phil
George Kirikos:Is there an email with the staff concerns that was sent to the mailing list??
Mary Wong:@George, we have only discussed this with the co-chairs for now, as a follow up to last week's WG call
George Kirikos:Thanks, Mary.
Mary Wong:But if the co-chairs wish, we can forward that to the WG of course.
Jay Chapman:that would help, Mary
George Kirikos:+1 Phil. I think the UDRP panelists would give standing.
George Kirikos:One additional argument would be that it would fall under 3(xiii)
George Kirikos:https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en
George Kirikos:"re warranted under these Rules and under applicable law," i.e. the words "and under applicable law" would trigger standing.
Yesim Nazlar:Lori Schulman has joined on the phone bridge only
Lori Schulman:I am now online. Thank you
Yesim Nazlar:Lori Schulman is now on AC as well
Paul Tattersfield:Hi Lori
Lori Schulman:Hi Paul
Yesim Nazlar:Gary S. Campbell joined
George Kirikos:1.7 of the WIPO overviews also show how "unregistered" rights can be demonstrated. http://www.wipo.int/amc/en/domains/search/overview2.0/#17
Gary S Campbell:Hi Guys
Lori Schulman:Thank you. I heard the end of your opinion. I will listen to the recording.
George Kirikos:Welcome, Gary.
Paul Tattersfield:+1 George the registration of rights is only a marker in time
George Kirikos:Thanks Phil.
George Kirikos:Page 5 of 11.
George Kirikos:(very bottom of page 5)
Lori Schulman:I am missing page 5
Lori Schulman:can't seem to scroll to it
George Kirikos:Here's the text of Article 6ter: http://www.wipo.int/article6ter/en/legal_texts/article_6ter.html
Lori Schulman:Using the copy Mary sent last night
George Kirikos:I assume we want to capture the language "is not of such a nature as to suggest to the public that a connection exists between the organization concerned" ??
Lori Schulman:That was my typing sorry.
George Kirikos:and also "such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization."
George Kirikos:Changing that would mean creating new law, which we shouldn't contemplate.
George Kirikos:Where it says "agent or licensee", perhaps make it "agent, assignee, or licensee"? (i.e. add "assignee" as a potential route)
George Kirikos:I would be in favour of Option #1, because it most closely reflects the "status quo" if we did a thought experiment of "what would happen if the UDRP never existed". i.e. IGO would waive immunity to bring a court dispute, if the UDRP doesn't exist. If Option 2 exists, then it would support gaming by complainants.
Lori Schulman:George, what do you mean by gaming?
George Kirikos:I'll try to get in queue.
Lori Schulman:ok
Jay Chapman:exactly George
George Kirikos:* 6 to unmute
Mary Wong:FWIW Lori's concern is one shared by staff as well.
Jay Chapman:the issue here is not immunity, it is the likelihood that a registrant's domain name can be taken away from them
Jay Chapman:without due process
Jay Chapman:due process = via a court of mutual jurisdiction
Mary Wong:Our reasons include the fact that a successful plea of immunity is not the same substantive ground as vitiating a panel decision.
George Kirikos:New hand.
George Kirikos:We posted evidence of cases where courts overturned arbitrators.
Mary Wong:@George, yes, but after consideration of the actual case facts, not simply based on an IGO successfully pleading immunity, surely?
George Kirikos:IF arbitrators can't be trusted to give the correct decision, then removing the court option makes those arbitrators unaccountable.
Lori Schulman:The system is not predictable. You cannot have a 100% predicatble system.
George Kirikos:Courts are far more protective of due process than arbitration.
Lori Schulman:Judges make incorrect decisions too. We through ourselves at the mercy of any system.
Lori Schulman:throw
George Kirikos:Yes, but courts have multiple levels of appeals, etc.
Lori Schulman:George I get that but IGO's are not typical rightsholders
Lori Schulman:that's the whole point
George Kirikos:I disagree, Lori. IGOs still have to go to the courts if I start selling UNESCO biscuits, etc.
George Kirikos:My devil's argument would be "get rid of the UDRP completely", Option #3.
Lori Schulman:George, totally unacceptable to trademark owners and you know that.
George Kirikos:What would IGOs (and TM holders) have as choices under Option #3??
George Kirikos:The "bargain" in the creation of the UDRP was that it wouldn't override the courts.
Lori Schulman:The point of the UDRP was to make the system efficient and reasonably reliable for all concerned.
George Kirikos:THe national courts still existed, for either side to use, if the decision was incorrect.
Mary Wong:@George, it's likely that Option 3 is outside the scope of this WG.
George Kirikos:I disagree, Lori. Vehemently.
Lori Schulman:Yes, but the UDRP is geared toward private parites.
Lori Schulman:private parties
Lori Schulman:we don't have private parties here
Lori Schulman:we have a governmental org
Lori Schulman:How is that treated in Canada?
George Kirikos:If you want a "more efficient" system, you could go the "URS" 1 page form, for the UDRP. THat would be very efficient.
George Kirikos:Wouldn't get due process, though.
Lori Schulman:URS does not impose permanent remedies
Lori Schulman:names get recirculated not redelegated
Lori Schulman:or transferred
Mary Wong:And my hand is up too
Lori Schulman:George, I am talking about problems related to IGO's
Jay Chapman:Where an IGO licenses its rights to a third party for UDRP assertion, an option 1 or 2 would never arise, because immunity is not at issue
George Kirikos:+1 Jay. We gave them the mechanism. They would only choose to avoid the licensing, etc., if they think they can game the outcome.
George Kirikos:Sound was breaking up there.
George Kirikos:I wasn't seriously proposing Option #3, but I am saying that Option #1 is more consistent with a hypothetical Option #3.
George Kirikos:Should we jump to #5 first?
Lori Schulman:i will defer my time to Mary
Mary Wong:Right, George, understood - so just noting for the record, nothing more.
George Kirikos:(bottom of page 10)
George Kirikos:Oops, looks like we have Rec #6 too.
Lori Schulman:I am not talking about parallel systems
Lori Schulman:I am talking about arbitration as a reasonable road to address the concerns of an important minority of rights holders = IGO's
Mary Wong:@Petter, this could be one of the open questions for which the WG seeks public input.
George Kirikos:Reasonable for one side, but not both, Lori.
George Kirikos:Mandatory arbitration has too many issues.
Lori Schulman:George, we can find decisions that run favorable to registrants and investors
Lori Schulman:As does court action for IGO's --too many serious, complicated issues
Lori Schulman:UNESCO can take make roads to deal with its biscuits but lets stick to domain centered issues
Lori Schulman:many
George Kirikos:I disagreee, Lori. The law should be the same for biscuits as it is for domain names.
Lori Schulman:demands, negotiation, mediation, arbitration. Court should never be a first resort
George Kirikos:We shouldn't be creating new laws, here, just reflecting existing laws.
Lori Schulman:We are.
Lori Schulman:I believe re IGO immunity.
George Kirikos:IGO waives that immunity, when it is the complainant.
George Kirikos:It is 100% shielded, if it doesn't want to file any complaint.
Lori Schulman:the standards of proof for actions in trademark vs domain cases aer not the same
George Kirikos:Let's suppose an IGO hacks my domain name registrar, and steals my domain name.
Lori Schulman:I am not a litigator so I can't go into deep details but I know that each cause of action has different legal hurdles
George Kirikos:I would be unable to sue them to recover my domain -- they have immunity there, because they are the defendant.
Lori Schulman:trademark claims v domain claims
George Kirikos:However, in the opposite situation, as complainant, they have to waiver their immunity, to take property through the legal system from someone else.
Lori Schulman:then there is a forum for your recourse
Lori Schulman:that's how it works in U.S. a special court for the types of claims you describe so why not special forum
Lori Schulman:for IGO issue
George Kirikos:Which "IGO special court" exists for biscuit disputes?
Lori Schulman:in US it court of claims
Lori Schulman:don't know outside of us
Lori Schulman:it is a court but with special rules for USG entities
Lori Schulman:I don't know about IGO's
Lori Schulman:Wish more were here to defend
Lori Schulman:that may say something too
Lori Schulman:can't sue for TM and Copyight claims in US
Lori Schulman:it's an issue, I won't deny that but agencies are generally careful but no always
George Kirikos:Are we back to 12 noon next week? Or sticking to 1 pm (Eastern time)?
Mary Wong:Yes, I think so, Phil
Mary Wong:Not at the moment
Mary Wong:Will do, Phil
Lori Schulman:This was lively. Thanks everyone.
Jay Chapman:appreciate the discussion
George Kirikos:Bye folks.
Mary Wong:Thank you all!
Jay Chapman:Bye everyone - thanks
Yesim Nazlar:Next Call is set to 15 September at 16:00 UTC
Lori Schulman:thank you phil
Paul Tattersfield:thanks bye all
Yesim Nazlar:Thank you all!
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