[Gnso-igo-ingo-crp] Option #6 -- final text

[George Kirikos]

Just to followup on Option #6, I was reviewing some of the public
comments to the draft report from earlier this year, and the comments
of the Intellectual Property Constituency (IPC) touched upon the "in
rem" topic in a couple of places:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/msg00043.html

"2. Explicitly permitting appeals of the decision to any court of
competent jurisdiction, e.g., on an in rem basis where the domain name
is located (via the registry or registrar)....." (page 3)

and

"The separate IGO DRP could include explicit instructions that any
decisions under the DRP would be appealable to any court of competent
jurisdiction on an in rem basis where the domain name is located (via
the registry or registrar)." (page 6)

Of course, their comments were in a slightly different context,
arguing for the creation of an IGO-specific DRP, an approach that the
members of this PDP have categorically rejected. However, their
comments on "in rem" proceedings are entirely consistent with the
underlying principles and justification for Option #6. Indeed, the IPC
went even further, advocating that appeals to *any court of competent
jurisdiction* in rem would be desirable --- Option #6 (as currently
proposed) would limit the "in rem" action to that of the "mutual
jurisdiction" in the URS/UDRP.

Sincerely,

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


On Wed, Dec 13, 2017 at 8:24 PM, George Kirikos <icann at leap.com> wrote:
> Hi folks,
>
> After debating how best to word the final text, I think I've come up
> with a concise representation of the proposal (open to friendly
> amendments).
>
> As noted in earlier discussions, it can either be fully incorporated
> into the existing "Option C" (which I believe had been the original
> intention when the options had been aggregated from 6 numeric options
> into 3 alphabetized ones, but option #6 had been overlooked). Or
> alternatively, it can become an independent option on its own.
>
> --------- start of final text  ------------------
> The text of both the UDRP and URS rules and policies shall be modified
> so that, in the event a domain name dispute (UDRP or URS) is initiated
> by an IGO as complainant and a registrant commences an "in rem" action
> in a court of mutual jurisdiction concerning that domain name, the
> registrar shall treat that court action in the same manner as if an
> "in personam" action had been brought directly against the IGO.
> --------- end of final text -----------
>
> I believe that text captures Option #6 in its entirety, without doing
> a line-by-line modification of the UDRP and URS text within the
> proposal itself (leaves that task to an implementation review team).
> Only a few paragraphs of the UDRP and URS would need to be adjusted.
> I've also narrowed the focus to only IGOs  above, but it could easily
> be adapted (and indeed, implemented more elegantly) for any type of
> complainant, not just IGOs (i.e. it was simply sloppy drafting of the
> UDRP/URS that limited domain locking  and maintenance of the status
> quo by the registrars to "in personam" cases at present, as the
> drafters hadn't contemplated that court actions might be initiated in
> any other manner).
>
> For the background of this proposal, previous emails cover it at:
>
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000944.html
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000957.html
>
> If Zak's recent proposal is adopted, whereby these multiple
> interrelated issues we've identified which have root causes that have
> broader impacts not just involving IGOs are forwarded directly to the
> RPM PDP for deeper analysis and consideration, then this Option #6
> would merit inclusion in that, given that there's really nothing
> specific to IGOs in this proposal (although that I was forced to
> reword it as such), except that we discovered this issue in the
> context of an IGO PDP working group.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/