[Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C

[Paul Tattersfield]

Agreed and further it is only an implicit waiver of jurisdictional immunity
and as such it does not (attempt to) bind the IGOs to any implied waiver of
immunity from execution.

Even before we get to that stage, the justifications for any immunity have
not been articulated.



The IGOs are initiating the action through their own volition.


They are looking to intervene in a private contract.


I can not find another forum in any jurisdiction, on any matter (not just
domain names), that would allow an IGO to initiate proceedings and
subsequently claim immunity in any follow-on proceedings.


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.

I appreciate this is a very precise legal point and even Prof. Swaine
confused this in his reasoning* but we as a working group have no excuse.

Further the IGOs have failed to present any evidence that even if we build
a system that gives them every name they ask for automatically it will
still not solve the problem the IGOs are looking to solve.



So I have two questions:

(a) If the IGOs are not “entitled to immunity” after initiating proceedings
in any other forum why should they be in UDRP?

(b) If the changes are not going to have any impact on the problems the
IGOs are looking to solve why should we even consider making a completely
new process?



Yours sincerely,





Paul.



*In 3. Discussion (Page 8) Swaine says:

"The core question is whether an IGO is “entitled to immunity,” but the
baseline assumptions may be disaggregated. An IGO’s immunity would be most
clearly at issue if the IGO had not itself initiated any related judicial
proceeding—since that would risk waiving any immunity to which it would be
entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction
provision were absent. This might be the case, for example, where a
domain-name registrant has sought a declaratory judgment in relation to
some actual or potential infringement by an IGO. Although that is not the
scenario of principal concern here, imagining that scenario usefully
isolates the question as to whether an IGO has a legitimate expectation
that it would be entitled to immunity absent the UDRP and its concessions.
If such immunity is minimal or uncertain, then any compromises required by
the UDRP loom less large; if the IGO would otherwise be entitled to
immunity, however, its potential sacrifice seems more substantial."
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