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

Fri Apr 28 14:27:06 UTC 2017

Thanks to Petter too, who is on that mailing list as well (in my first
pass through the archives, I had forgotten his posts of Feb 2017). My
apologies for the unintended oversight. As I noted in the earlier
email, I hadn't read the transcripts or listened to the audio
recordings, but I'm confident that *both* our co-chairs are doing an
excellent (and mostly thankless!) job representing our PDP's work.
Thank you.

Have a great weekend, everyone.

Sincerely,

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

On Fri, Apr 28, 2017 at 10:17 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
> " 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/
>> _______________________________________________
>> Gnso-igo-ingo-crp mailing list
>> Gnso-igo-ingo-crp at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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