[Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs' proposal for moving forward to determining consensus

Mon Dec 18 19:39:56 UTC 2017

Paul:

Speaking personally, I am puzzled by your reference to “another rights protection mechanism for IGOs”. I know of no such proposal being contemplated. Option C for Recommendation 3, which is the only UDRP policy modification that has been contemplated, would assure that a domain registrant gets a hearing on the basis of national law, albeit in an arbitration forum, if the IGO succeeds in its judicial immunity claim.

I have viewed that as a new protection for registrants, not IGOs, as in that scenario under current UDRP policy the stay on the UDRP decision would be lifted and the domain would be transferred or extinguished.

Best, Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Paul Keating [mailto:paul at law.es]
Sent: Monday, December 18, 2017 2:18 PM
To: Corwin, Philip <pcorwin at verisign.com>
Cc: gpmgroup at gmail.com; mary.wong at icann.org; gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs' proposal for moving forward to determining consensus

Phil,

While our WG recommendation can never control the independent acts of an IGO, we can nevertheless

State with conviction that we do not believe the UDRP as currently embodied poses an issue relative to IGO assertions of immunity in post-UDRP proceedings.

Include in our report a recommendation that the UDRP decision is vitiated should the IGO prevail in a post-UDRP immunity claim.

Include other suggestions that would limit post UDRP litigation.

What we should not do is suggest yet another rights protection mechanism for IGOs when there has been no evidence (as opposed to unsupported assertions and inuendo) that a problem actually exists.

Sent from my iPad

On 18 Dec 2017, at 19:55, Corwin, Philip via Gnso-igo-ingo-crp <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>> wrote:

   Paul:

   Speaking in a personal capacity, I have long viewed Option A for Recommendation 3 as embodying the view that an IGO should never be entitled to raise an immunity defense, as it would have the prior UDRP decision vitiated if an IGO raised such judicial defense and succeeded in it.

   However, whether this WG (or members thereof) believes an IGO should be able to raise such a defense would in no way prevent an IGO from doing so if a domain registrant sought de novo judicial review, nor could we prevent a national court from affirming such a defense and terminating the judicial action. That is why Recommendation 3 has focused upon what should happen in terms of a policy response in such a scenario. Again, I believe that Option A already expresses your viewpoint.

   Best, Philip

   Philip S. Corwin

   Policy Counsel

   VeriSign, Inc.

   12061 Bluemont Way
   Reston, VA 20190

   703-948-4648/Direct

   571-342-7489/Cell

   "Luck is the residue of design" -- Branch Rickey

   From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Tattersfield
   Sent: Monday, December 18, 2017 12:41 PM
   To: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
   Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>>
   Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs' proposal for moving forward to determining consensus

   Mary, I respectfully disagree with this approach as I believe it hinders our attempts to find the correct solution.

   Please can either of the co-chairs provide a simple written reply confirming that they accept the reasoning below * or in the alternative that they disagree with it, please can they provide a reasoned explanation as to why it should be refuted?

   Thanks,

   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 (a) 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 from 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)

   On Mon, Dec 18, 2017 at 4:46 PM, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>> wrote:

      The following email is being sent on behalf of Philip Corwin & Petter Rindforth (WG co-chairs).

      It is the view of the co-chairs that our exhaustive discussion of the options for dealing with the potential situation of an IGO successfully asserting an immunity claim in a judicial context have reached an end point; that all issues relevant to our Charter have been raised, understood and discussed; and that further discussion is unlikely to yield additional options that enjoy consensus support, or sway the view of Working Group participants regarding which option should prevail.

      Therefore, the co-chairs intend to proceed in the following manner:

      * If a significant number of WG members believe that further oral discussion of the three additional options that will be presented in a final consensus call is needed, supplementing the three that were presented for WG consideration in our preliminary consensus call held in October 2017, and that email list discussion is insufficient for WG members to understand the intent and effect of all six options to be included in the consensus call, we will hold a WG meeting on December 21st at our regular time. Please respond to the mailing list if you believe a call on December 21st is needed.

      * On December 22nd, a second poll will be sent to all WG members. The purpose of this poll is to assist the co-chairs in determining the level of support/opposition that each option enjoys. This poll will ask all WG members to designate one of the six options as their preferred choice for addressing the IGO immunity issue. WG members will also be provided with means to add comments regarding that preferred choice, as well as each of the other five options. These comments can indicate support or opposition for each of the options, as well as whatever additional views a WG members wishes to provide. Responses to this poll will be anonymous, although any WG member will be free to share his/her response on the WG email list. The poll will remain open until Friday January 5th, 2018. The aggregated results of the poll, as well as all comments, will be shared with all WG members and will be included as a section of our Final Report.

      * Once the poll closes, the co-chairs will review all responses and then share their views with WG members regarding the level of consensus that each option enjoys. We hope to hold the first meeting of the WG on January 11th, 2018 in order to discuss poll results and the co-chairs’ evaluation. The GNSO WG Guidelines provide all WG members with an opportunity to provide feedback on those proposed classifications, and the final consensus level for each option included in the Final Report will be determined under the procedure provided in the Guidelines. As soon as that process is completed we will publish a draft Final Report for WG review and comment, and will provide a reasonable time for all WG members to draft and submit Minority views. We will try to have our Final Report ready for submission to the GNSO Council in order to meet the February 12th, 2018 document submission deadline, at the latest, for its February 22nd meeting.

      Please let us know if you have any questions about this procedure. Thank you.

      _______________________________________________
      Gnso-igo-ingo-crp mailing list
      Gnso-igo-ingo-crp at icann.org<mailto:Gnso-igo-ingo-crp at icann.org>
      https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

   _______________________________________________
   Gnso-igo-ingo-crp mailing list
   Gnso-igo-ingo-crp at icann.org<mailto:Gnso-igo-ingo-crp at icann.org>
   https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171218/a9fff001/attachment-0001.html>