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

Fri Apr 28 15:57:57 UTC 2017

+1 George

Sincerely,
Jay Chapman

On Fri, Apr 28, 2017 at 9:27 AM, George Kirikos <icann at leap.com> wrote:

> 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-boun
> ces 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-boun
> ces 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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> >
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