[Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July

[Paul Keating]

Mary and fellow WG members,


Unfortunately I have been working on several large projects with clients in
North America that have me working the phone most daystar 8am conference
calls (which for me ­ being in Barcelona - begin at  5pm onwards.  I have
another client call tonight so I will not be able to make the call today.


Please make the following known to the group and retain it in the WG records
 


I remain in favor of the following principals
 
A.           That by filing a UDRP complaint and agreeing to the ³Mutual
Jurisdiction² the complainant (including the NGO) is waiving any objection
to jurisdiction of the mutual jurisdiction.

 

B.           That by relying upon ³trademark² rights the complainant is by
definition admitting to a commercial activity.

 
C.           There has been no evidence that NGOs have refrained from filing
a UDRP because of their concerns over sovereign immunity.

 

D.          NGOs have in the past filed UDRPs ­ evidence that the Mutual
Jurisdiction provisions are not a limiting factor.

 
*   Assertions of phishing are merely that ­ assertions. Assertions are not
evidence. 
 
E.           NGOs have alternative means to press their claims in a UDRP (or
other legal) forum ­ e.g. by assignment, etc.

 

*   Phishing and similar conduct can be appropriately prosecuted by law
enforcement on behalf of the NGO.
 
F.           That if the NGO successfully asserts sovereign immunity in a
post UDRP proceeding, the underlying UDRP decision should be vitiated.

 
I have previously explained my additional rationale for this position, which
is summarized here:
 
1.            The UDRP was created as an streamlined administrative action
in which:

 
a.    Notice and service of process was simplified ­ no confirmation of
notice is required.

b.    Filings are limited by page/word length.

c.    Evidence is severely limited in both form and quantity

d.    Assertions are often treated as evidence.

e.    There is no ³precedent² value and panelists are neither required nor
inclined to follow relevant judicial decisions.

 

2.            Section 4(k) was a material part of the bargain to permit a
losing registrant the right to challenge the matter before a real court
under real rules guarantying due process.

 

3.            NGOs were certainly around at the time.  Their input was
heard.  The UDRP was nevertheless established ­ with the blessing of WIPO I
might add.

 
4.            There is no concrete way to establish what constitutes an NGO.
NGOs come in a variety of shapes, sizes and qualities.  Some are expressly
not recognized by nation states.  This in turn rises substantial issues of
proof- which in the context of the limited administrative nature of the UDRP
is inappropriate.

 
5.            The UDRP is a contractually created process mandated by ICANN.
All registrants must agree to application of the UDRP (or similar ADR) as a
condition to registration.  The UDRP Policy itself is not based upon
recognized jurisprudence and is constantly shifting in meaning and scope as
panelists seek to further streamline the process by largely ignoring the
express language of the Policy.  It also obligates the registrant to abide
by an ever-changing landscape of trademarks (e.g. registration and use of a
domain name in PPC followed by a later trademark registration would place
the registrant at risk of losing the domain name because PPC use is rarely
recognized and at least a minority of panelists continue to apply
retroactive standards such as those found in MummyGold and other decisions
attempting to retroactively apply Paragraph 2 to the Policy).

 

6.            Trademark rights have been proscribed to a ³standing²
requirement that presents no meaningful condition.

 
7.            The requirement that the trademark be ³identical or
confusingly similar² to the asserted trademark has been proscribed such that
the condition is met whenever the trademark appears (in whole or significant
part) in the domain name.  Thus, for example, the rule supports finding that
the domain name ³the.com² is confusingly similar to a trademark for
³Theatre² because the letter sequence ³the² appears in both.

 
8.            Panelists rarely apply trademark analysis to the registrant¹s
use of the domain name.

 
UDRP Appeals Process.
 
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a
UDRP appeal process ­ organized and managed in a manner similar to the DRS
process at Nominet.  This is not a change of position as I favor an appeals
process for all UDRP participants.
 
As I stated in my communications, such an appeals process is not a
replacement of Section 4(k) or the mutual jurisdiction certification.
Instead it should be an economical means of correcting poorly reasoned
decisions by inexperienced or biased panelists ­ economical in that it
limits those situations in which the parties must spend tens of thousands of
dollars in litigation.
 
I strongly disfavor any appeals process that would be unique to NGOs or that
would remove the protections of Section 4(k) or the mutual jurisdictional
certification.


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