[Gnso-igo-ingo-crp] FW: IGO "appeals" in ICANN CRP WG

[Mary Wong]

Dear all,

Please find below an email from Paul Keating (forwarded to this mailing list with his permission), concerning the possibility that the appeals process deployed by Nominet may be helpfully considered by the Working Group in relation to Options A-C. You may recall that Paul’s suggestion was brought up during the group’s open community session at ICANN60, so we are providing his full email for further context.

In addition, you may wish to review the following links:

  *   Nominet FAQ on its dispute resolution process: https://www.nominet.uk/domains/resolving-uk-domain-disputes-and-complaints/
  *   Paragraph 20 of the Policy: https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2017/10/17150434/final-proposed-DRS-policy.pdf
  *   Paragraph 18 of the Procedure: https://nominet-prod.s3.amazonaws.com/wp-content/uploads/2015/11/DRS_Procedure.pdf

Staff is attempting to locate more specific details and provisions for the Nominet appeals procedure, and we will forward that information if we are able to find it.

Thanks and cheers
Mary


From: Paul Keating <paul at law.es<mailto:paul at law.es>>
Date: Wednesday, November 1, 2017 at 22:18
To: "Beckham, Brian" <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>
Cc: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>, "petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>" <petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>>, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Subject: [Ext] Re: IGO "appeals" in ICANN CRP WG

Brian,

I will not make the call most likely but please share this with the group publicly.

As i said, my first position is that should an IGO successfully move to dismiss a post-UDRP action based upon SI, the underlying UDRP should be vitiated.

My distant second position is a post UDRP Nominet-like appeals process.  The appeals panelists should be carefully selected and I would require specific training and a more “law” based process that avoids the watered down analysis now prevalent in the UDRP, PARTICULARLY when it comes to the 1st element which would require a more traditional trademark infringement test honoring the actual language of the Policy.

Btw, I had suggested an alternative based upon my perception that IGOs concern was mainly to do with possible monetary judgments.   The suggestion was to prohibit a SI claim if the respondent in turn waived any claim to monetary damages.  This would be a small price to pay as most such judgments are virtually uncollectible at any rate.  This was not adopted largely because it would work only if the IGO signed a separate waiver as a part of the UDRP process - an unlikely prospect.

I hope you are enjoying AD.

Be well,
Paul Keating
Sent from my iPad

On 1 Nov 2017, at 11:35, Beckham, Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>> wrote:

Hi Paul,



Picking up on your comment at the WIPO Workshop last week, we mentioned to IGO WG co-chairs Phil and Petter, your comment about (and if I understood, receptiveness to) the possibility of a "Nominet-like" appeals avenue for IGOs in a curative ("UDRP-like") dispute resolution mechanism.



We (WIPO) are in a separate conflicting meeting today, but on the suggestion of the WG co-chairs, wonder if you  might see fit to raise your comment/question in today's IGO WG session?



I am also including the co-chairs and ICANN staff on this email in case they would see fit to forward this email to the WG.



(Of course, as I stated, most recently at the IGO WG session in Johannesburg, this specific "appeals avenue" would not eclipse court options generally.)



Best regards,



Brian
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