[Gnso-igo-ingo-crp] Issues raised by Small discussion group concerning IGO and Red Cross identifiers

Fri Apr 28 14:17:24 UTC 2017

" Our own Phil Corwin is on that mailing list, and doing an excellent 
 job in my opinion of representing our work to date".

Thanks for the shout out, George. 

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 Novoa, Osvaldo
Sent: Friday, April 28, 2017 9:58 AM
To: 'Paul Keating'; George Kirikos
Cc: gnso-igo-ingo-crp at icann.org
Subject: Re: [Gnso-igo-ingo-crp] Issues raised by Small discussion group concerning IGO and Red Cross identifiers

+1
Excellent Work!!!
And most useful for our analysis.
Thank you and best regards,
Osvaldo Novoa

-----Mensaje original-----
De: gnso-igo-ingo-crp-bounces at icann.org [mailto:gnso-igo-ingo-crp-bounces at icann.org] En nombre de Paul Keating Enviado el: viernes, 28 de abril de 2017 03:01 a.m.
Para: George Kirikos
CC: gnso-igo-ingo-crp at icann.org
Asunto: Re: [Gnso-igo-ingo-crp] Issues raised by Small discussion group concerning IGO and Red Cross identifiers

George

Well done. I am amazed at your dedication although I often honestly wonder where you get the time.

Thank you for your comments tinier contributions.

Sincerely,
Paul Keating, Esq.

> On Apr 28, 2017, at 3:10 AM, George Kirikos <icann at leap.com> wrote:
>
> Hi folks,
>
> During today's call, reference was made to the Small discussion group 
> concerning IGO and Red Cross identifiers, whose mailing list archives 
> can be visited via:
>
> https://mm.icann.org/mailman/listinfo/discussion-igo-rc
> http://mm.icann.org/pipermail/discussion-igo-rc/
>
> Our own Phil Corwin is on that mailing list, and doing an excellent 
> job in my opinion of representing our work to date.
>
> I've been going through the archives, and have some comments/thoughts below:
>
> 1. in the post at:
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-March/000116.html
> the OECD rep made bold and overbroad assertions about the nature of 
> IGO protections in national legislation, stating:
>
> "Canada's legislation in this regard extends beyond simple refusal to 
> register a conflicting trademark: §9(1) of the Trade-marks Act states 
> that "No person shall adopt in connection with a business, as a 
> trade-mark or otherwise, any mark..."
>
> That's a highly misleading statement/snippet, perhaps assuming that no 
> one would actually look up the full text of the Canadian legislation.
> I did. It's at:
>
> http://laws-lois.justice.gc.ca/eng/acts/t-13/
> http://laws-lois.justice.gc.ca/eng/acts/t-13/page-2.html#h-3
>
> and it makes clear via explicit language that there are excepted uses:
>
> 9(2) Excepted uses
>
> (2) Nothing in this section prevents the adoption, use or registration 
> as a trade-mark or otherwise, in connection with a business, of any 
> mark .....
> (ii) an armorial bearing, flag, emblem or abbreviation mentioned in 
> paragraph (1)(i.3), *****unless the use of the mark is likely to 
> mislead the public as to a connection between the user and the
> organization.*****
>
> (emphasis added)
>
> And section 9(1)(i.3) was (on the same page) referencing IGOs and Article 6ter:
>
> "(i.3) any armorial bearing, flag or other emblem, or the name or any 
> abbreviation of the name, of an international intergovernmental 
> organization, if the armorial bearing, flag, emblem, name or 
> abbreviation is on a list communicated under article 6ter of the 
> Convention or pursuant to the obligations under the Agreement on 
> Trade-related Aspects of Intellectual Property Rights set out in Annex 
> 1C to the WTO Agreement stemming from that article, and the Registrar 
> gives public notice of the communication;"
>
> So, it's clear that that the "Excepted uses" in Canada law recognizes 
> coexistence explicitly, mirroring the language of Article 6ter section
> 1(c) which made the recognition of coexistence via exceptions for:
>
> "when the use or registration referred to in subparagraph (a), above, 
> is not of such a nature as to suggest to the public that a connection 
> exists between the organization concerned and the armorial bearings, 
> flags, emblems, abbreviations, and names, or if 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."
>
> and which is reflected in our own group's recommendations (which the 
> IGOs did not like, as they seem to ignore section 1(c) of Article 6ter 
> repeatedly).
>
> So, I hope this is brought to the attention of the "Small discussion 
> group", to ensure that they're not making incorrect assessments of the 
> nature of the IGO protections based on misleading statements from the 
> IGOs.
>
> 2. In the post at:
>
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000132.html
>
> where, as we discussed today during the call, Bruce Tonkin proposed 
> asking for external legal advice regard relevant national laws in 
> relation to IGO protection, "before being able to design a new dispute 
> resolution process." I am confident that at least in Canada and the 
> USA, that no such national laws limit the due process rights of those 
> accused of misusing the IGO marks --- the accused would still "get to 
> have their day in court."
>
> In the past, we discussed the possibility of allowing representatives 
> of national authorities to bring the UDRP/URS actions (instead of the 
> IGOs themselves), as a way forward. Perhaps this should be revisited, 
> to handle the immunity issue once and for all. National authorities 
> would obviously face no question of immunity before their own courts 
> (except perhaps those in totalitarian regimes where due process 
> doesn't exist). If a Canadian entity is accused of misuse of an IGO by 
> a Canadian national authority in a UDRP/URS, a decision could be 
> appealed by either side to the relevant Canadian courts, leaving the 
> IGO out of the process and shielded from the immunity issue.
>
> Bruce Tonkin might be sympathetic to that possibility, when he 
> mentioned in a later post at:
>
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000147.html
>
> "a Government on their behalf"
>
> can act to protect IGOs via the laws of their jurisdictions. He also wrote:
>
> " I am assuming that it is in the "public interest" for an IGO or 
> Government to take some action to stop the mis-use - just trying to be 
> clear "how" that would be done."
>
> If, in the public interest, we explicitly allow governments or 
> national authorities to bring the UDRP/URS, as "agents" of the IGO, 
> this would appear to solve many issues. We already issued policy 
> guidance about "assignees, licensees and agents", so perhaps we could 
> be more explicit in our report about permitting national authorities 
> to be the agents of the IGOs, as part of our "workaround"?? [Of 
> course, the national authorities don't have to use the UDRP/URS at 
> all, they could just go directly to their courts using existing 
> judicial mechanisms.]
>
> Any ICANN-developed process *needs* to ensure that full due process 
> for domain name registrants (including via access to the courts) is 
> not eliminated, otherwise ICANN would be making up new law, beyond 
> what exists in national laws.
>
> 3. The rep from WIPO stated at:
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000134.html
>
> "Standing for IGOs which need not be expressly grounded in trademark 
> law as such, as IGOs are created by governments under international 
> law and are in an objectively different category of rights holders."
>
> which is an odd statement, given that the OECD rep previously pointed 
> explicitly at Canada's Trademark Act! While other nation's laws 
> differ, we should not be creating new DRPs for every possible event of 
> fraud or misuse of the DNS --- that's what the national courts are 
> there for.
>
> When Barclays plead guilty of manipulating FX rates:
>
> http://www.circleid.com/posts/20150520_should_barclays_lose_the_barcla
> ys_top_level_domain/
>
> the national authorities didn't seek "relief" for that disgusting and 
> illegal behaviour via the UDRP or some other DRP created by ICANN, or 
> argue that ICANN should create a new DRP for FX manipulation. There 
> has been talk about creating a "Copyright" version of the UDRP, for 
> example, or other DRPs. ICANN should not be wasting limited volunteer 
> resources and time via mission creep, trying to replace or supercede 
> the national laws of 200+ members. At least with the UDRP/URS, there 
> was a strong "lowest common denominator" amongst those national 
> trademark laws, which are reflected in the policies, and the policies 
> directly permit court action at any time, either before, during or 
> after a panel decision. It's clear that the IGOs want to eliminate 
> those due process protections of the courts, by compelling 
> arbitration, by revisiting issues that have been looked at for nearly
> 20 years (and repeatedly rejected by the community).
>
> 4. As I've noted in the past (and noted in my comments on our draft
> report)
>
> https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20j
> an17/msg00004.html
>
> IGOs seem to misunderstand their choices. As I wrote:
>
> "Note that the above roadmap is in addition to all the other legal and 
> non-legal options that an IGO has, including:
>
> - sending cease and desist letters
> - filing WHOIS accuracy complaints (most criminals use false WHOIS)
> - contacting registrars when there is abusive/illegal conduct
> - contacting payment processors (Paypal, Visa, Mastercard, etc.) in 
> the event of financial fraud
> - contacting webhosting companies to take down illegal content
> - pursuing court action as a first option
> - asking law enforcement to pursue criminal behaviour"
>
> The entire work of that "small discussion group" seems to want to 
> reinvent the wheel, and replace all existing law in 200+ countries 
> with poorly thought out ICANN mechanisms that eliminate due process 
> for registrants.
>
> 5. One of the ICANN board members stated at 
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000139.html
> that
>
> "I agree, excellent idea, but selection of the expert will be key. The 
> GNSO had asked for a legal opinion before, but it was a US expert 
> whose conception of international law was not necessarily shared by 
> the Europeans!"
>
> Not only is this an unfair assessment of Professor Swaine's work, it 
> seems to suggest that IGOs can "massage" the process and predetermine 
> the outcome through selection of an "expert" who will parrot their 
> incorrect views. This is alarming.
>
> While he seemed to backtrack a bit in a followup post at:
>
> http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000142.html
>
> it still seems that there are issues of gaming the outcome via 
> selection of a "sympathetic expert". We saw that in the new gTLD 
> process itself, when ICANN commissioned dubious external "economic 
> reports" by the Compass Group in order to support a predetermined 
> outcome desired by the ICANN Board.
>
> In conclusion, I think this demonstrates why having a "parallel" group 
> is a bad idea, because it's trying to redo our comprehensive work, and 
> has fewer eyes on it compared to this formal PDP. It makes little 
> sense to me that IGOs have ample time to participate in that mailing 
> list, yet had no time to participate in our PDP as members. I think 
> that highlights the "forum shopping" argument, that IGOs are looking 
> for sympathetic forums (of which binding arbitration is an example) to 
> gain advantages of an uneven playing field.
>
> Other members of this PDP working group might want to take some time 
> to review those mailing list archives (took me a couple of hours, 
> although I didn't review any audio or transcripts or their Wiki), to 
> look for other factual errors and issues that might not have been 
> caught by that group.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> _______________________________________________
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> Gnso-igo-ingo-crp at icann.org
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