[Gnso-igo-ingo-crp] A way forward that actually helps the IGOs in the real world

[Paul Tattersfield]

Rather than spending an inordinate amount of time on what is effectively a
quirk of process, it would make much more sense to put in place solutions
that would actually help an IGO seeking to initiate UDRP proceedings whilst
at the same time not removing any rights from registrants defending their
domain.

Given the IGO is clearly initiating proceedings much of the reasoning on
immunity in the Swaine Report and the working group’s own draft report is
not relevant.**

I therefore respectfully suggest that the working group takes a step back
from the consensus vote and looks at what practical measures can easily be
implemented to actually provide some tangible benefits.




*Outcomes *Firstly the working group outcomes need to be separated from the
options to prevent some working group members conflating them to instil
fear of report rejection etc. but once we are at that point then the
working group has a lot of options and can seek to genuinely help all
parties resolve their disputes, not just those that are subjected to a
highly unusual (if not even never occurring) quirk of process.

I personally would do something like below but it really depends on how
long people want spend on each aspect.




*Mediation *Private mediation is a very simple improvement: If it gets a
percentage* of disputes dealt with faster and/or at a lower cost then that
has to be a good thing all round. We should arrange for the UDRP providers
provide it at no cost to the parties.

* I understand from the Nominet presentation earlier in the week that
around 30% of disputes are settled this way in their dispute process, which
is very impressive given the low cost to both parties.




*Arbitration *UDRP already permits the resolution of disputes through
arbitration I would bind the IGOs to arbitration in the same way the mutual
jurisdiction clause binds complainants to the registrant’s judicial system.

Rules for Uniform Domain Name Dispute Resolution Policy
App: 28/09/2013 -  Imp:31/07/15

3 (xii) State that Complainant will submit, with respect to any challenges
to a decision in the administrative proceeding canceling or transferring
the domain name, to the jurisdiction of the courts in at least one
specified Mutual Jurisdiction;

3 (xiii) State that an IGO Complainant will submit, with respect to any
challenges to a decision in the administrative proceeding canceling or
transferring the domain name, to arbitration.

I’m personally quite comfortable with arbitration as long as it is a free
choice for the registrant, I’m aware other working group members are really
opposed to it, but I don’t see a problem if it's just another optional
track. It also helps in situations where the judicial route is not
available.

If I wanted more people to choose it, the working group could set out a
framework, but it needs to be faster, cheaper and less risk involved (i.e.
name only etc.) for registrants to choose to go that way.




*Refusal to participate in proceedings *Where an IGO refuses to take part
in judicial or arbitral proceedings I would quash any UDRP determination
decision.

My guess is if we could get all this done then the working group will have
done a pretty good job. If people are concerned with ensuring that IGO and
non-IGO disputes are all to be treated identically we can easily re-align
the two routes by recommending that our working group sunsets our
recommendations upon the implementation of the All RPM Working Group’s
findings.

Best regards,


Paul.



*** Why the IGOs are never entitled to an immunity defence *

Absent UDRP there are two possible ways the immunity question could come
before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has
registered

In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to
consider the matter.

As the UDRP is an administrative procedure to help take less complex cases
out of the judicial system if UDRP is to afford the same protections as any
other forum then UDRP needs to take into account both cases.

(a) A TM owner seeks to acquire a domain which an IGO has registered by
bringing a UDRP
(b) An IGO seeks to acquire a domain which a domain registrant has
registered by bringing a UDRP

The working group has not looked at (a) which hides the fact that in (b)
the IGO is never entitled to immunity under any circumstances after
initiating an action.

Most of the reasoning in the Swaine report applies to (b) and is therefore
not relevant to the working group's report as we are not considering (a)
the case where a TM holder initiates UDRP proceedings against an IGO.

For example the working group’s draft report (page 17):



*There is no single universal rule that is applicable to IGOs’
jurisdictional immunity globally. Rather, such immunity is essentially
contextual - IGOs generally enjoy immunity under international law, but
different jurisdictions apply the law differently, and even within the same
jurisdiction different IGOs may be treated differently: *Including this is
clearly incorrect as this reasoning can not be applied to (b) and the
report does not consider (a)
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