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

[Paul Tattersfield]

Thank you for confirming my concerns on my second question Paul, I would be
grateful if anyone who supports option ‘C’ could take the time to comment
also.

If  Phil or Peter as co-chairs or any other working group member
(especially anyone who supports option C), could take the time to comment
on the first question I would also be very grateful. Perhaps the question
was not clear so let’s try it a different way:


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.


If the UDRP is to afford the same protections as a court would, then UDRP
needs to take into account what would happen if a TM holder brought a UDRP
against an IGO for possible TM infringement.

Why hasn’t the working group taken any time to consider these protections
for IGOs? Is the working group remiss in not considering this matter?

Yours sincerely,


Paul.

On Wed, Nov 22, 2017 at 11:04 AM, Paul Keating <Paul at law.es> wrote:

> +1000
>
> Nor has there been ANY evidence (whatsoever) that any IGO has forgone
> undertaking any UDRP because of its fear of waiver of its asserted
> Sovereign Immunity.
>
> Indeed there is evidence of a number of instances in which IGOs have in
> fact pursued claims under the UDRP.
>
> There is simply no factual basis for considering what the IGOs and GAC are
> presumably requesting.
>
>
> What is being proposed with the new “IGO arbitration” is spending
> thousands of hours of time to develop a “solution” for something that has
> not been identified as a problem.
>
> I feel like I am hearing a young child scream “Daddy I want, Daddy I want”
> while seeing a horse for the first time and my having to repeatedly explain
> that it simply would not lit in our apartment.
>
>
>
> Paul
>
> From: Paul Tattersfield <gpmgroup at gmail.com>
> Date: Tuesday, November 21, 2017 at 10:10 PM
> To: Paul Keating <paul at law.es>
> Cc: "Corwin, Philip" <pcorwin at verisign.com>, "icann at leap.com" <
> icann at leap.com>, "gnso-igo-ingo-crp at icann.org" <
> gnso-igo-ingo-crp at icann.org>
> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll
> constituting preliminary consensus call on Options A-C
>
> 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."
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171122/501a2851/attachment-0001.html>