[Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 1 (was Re: FOR REVIEW: Updated Draft Final Report)

[George Kirikos]

Hi folks,

Given time is of the essence, below are some comments after reviewing
the first 17 pages of the July 2, 2018 draft final report. There will
be more comments  tomorrow and/or Thursday, but I thought I'd get
these initial comments out early, so that staff and/or other PDP
members can benefit from seeing them sooner rather than later.  I
would pay particular attention to comment #9 (others might want to
carefully review the text, given that issue!).

(all page references relative to "Clean" version of July 22 draft,
unless otherwise stated)

1. page 5, "Note on Recommendation #2" -- I'm assuming the "insert
relevant section/page" will be updated in a future draft? If it's just
the relevant section (without a page number), that should be
sufficient for it to not have to change between revisions. Same in a
few other places. [i.e. I'd have expected these to have been filled
out, as we get to a near-final report draft]

2. page 5, Recommendation #3: it says that "ICANN Organization" shall
create the policy guidance. In Recommendation #2 (page 4), the policy
guidance is from "ICANN". I'm assuming both of these would be created
via an Implementation Review Team (IRT), so I think the language of
Recommendation #3 should be simply changed to "ICANN" (rather than
"ICANN Organization"). i.e. we *don't* want ICANN staff to be creating
the policy guidance -- it should be done via the IRT.

3. page 7, "Note on Recommendation #5". "losing registrant notifies
ICANN" -- should instead be that the losing registrant notifies the
REGISTRAR. i.e. section 4(k) of the UDRP is between the registrant and
the registrar:

https://www.icann.org/resources/pages/policy-2012-02-25-en

Same fix required later in the same paragraph. "ICANN will take no
action" should be changed to "Registrar will take no action".

4. while this was supposed to be the "clean" version of the document,
Recommendation #4 (page 5 and page 6) and Recommendation #5 (page 7)
seem to have some remnant notes in the right column  and formatting
taken from the "redline" version. Same on page 12 (and elsewhere).

5. page 10, 2nd paragraph "to not recommend any substantive changes to
the UDRP or URS at this time". Since some debate whether changes to
4(k) are "substantive", etc., perhaps change the phrasing to match the
language in the prior paragraph, i.e. "would be to not modify any of
the substantive grounds of the UDRP or URS at this time." (since
"substantive grounds" would refer to the specific portions of the
UDRP/URS that we're not changing) This would also be more consistent
with Recommendation #1's language re: "substantive changes" (which we
did *not* apply to IGOs)

6. page 10, recommendation #1, "initial conclusion" can be simplified
to be "conclusion" (2nd last paragraph of that page) given where we
are now.

7. page 10, recommendation #1: last paragraph seems to repeat much of
the same language of the immediately prior paragraph. I would simply
rewrite it as: "In relation to INGOs, the following is the Working
Group’s rationale for its conclusion:" (i.e. get rid of the last 3
lines of text). If this is done, then footnote 4 needs to be moved,
perhaps to the word "rationale" from its current position.

8. page 11, paragraph #3 " issue of ICANN subsidizing INGOs to utilize
DRPs is outside the scope of the Working Group’s Charter" Is that
correct? Because arguably the "scope" of the charter included (from
bottom of page 5) "as well as the Charter language requiring the
Working Group to consider “the need to address the issue of cost to
IGOs and INGOs to use curative processes”, I'm not sure how best to
rephrase it, but it might be something to consider modifying slightly.

9. pages 13-14: Recommendation #2. This does *not* appear to be an
exact copy/paste of the recommendation from earlier in the document
(pages 4-5). They should be word-for-word identical, but they're not.
e.g. on page 14, first line, it says "service rights" instead of
"service mark rights". On page 13, it says "does not have trademark or
service rights", but it should be "does not have REGISTERED trademark
or service MARK rights"

Obviously we can't have different language for the recommendations in
different sections of the document -- they need to be identical. If it
happened to this recommendation, it might be a problem elsewhere in
the document too. I can't check everything, so hopefully others are
watching for this when reviewing these documents.

10.  page 15, paragraph 1: "The Working Group believes that an IGO’s
reliance on its compliance with the Article 6ter procedure for the
limited purpose of demonstrating standing will not necessarily result
in an increased number of complaints.." This seems to be the language
from an older report, where the recommendation was different. So, that
was our OLD belief. So, perhaps it needs to change to something like:

"Initially, the Working Group believed that …."

and then it would flow with the rest of the page, i.e. 2 paragraphs
later it talks about how we got specific comments, etc. after the
initial recommendations. The 2nd paragraph seems to have changed
things correctly already (i.e. used language such as "believed",
"originally considered", etc).

11. page 15, paragraph 1: same as argument as point #10 above, where
it says "The Working Group also believes…" These were our older
beliefs, which we've changed.

12. page 15, paragraph 3: consider changing "equalizing" in line 3 to
"elevating"

13. page 16, recommendation #3: There is no reasoning or rationale
here! This section needs to be beefed up and expanded considerably.
The word "assignee" appears only 5 times in the entire document (and
those other places don't really elaborate much). I would at least:

i) reuse the language from page 21, i.e. it's "a potential means of
insulating themselves against any direct concession on mutual
jurisdiction." (fixing the typo on page 21 for "jurisdiction)

ii) point to relevant text in the WIPO overview, e.g.
http://www.wipo.int/amc/en/domains/search/oldoverview/#18

iii) Note that an IGO has *already* successfully used this procedural
workaround, i.e. the UNITAID case, see:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/date.html
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000221.html
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2014-December/000220.html

iv) reference the appropriate section from the Swaine report that also
mentioned it.

14. page 17, recommendation 4: important to emphasize in the
supporting language (not just in the recommendation) that any
subsidies should not create an uneven playing field between
complainants and respondents. Something like:

"Furthermore, many Working Group members believe expressed concern
that subsidizing a complainant might create an uneven playing field
between complainants and respondents. Thus, in the event that a
complainant receives financial support, the respondent should also
receive financial support for its defense."

Or words to that effect.

More to come later. I'm expecting many comments re: Recommendation 5,
so the above was a good place to stop for now.

By the way, with regards to "Minority Statements", must they be in
Word Format? Why not PDF? (since they're not reviewed/edited, they can
then be merged using various tools that merge PDFs, or simply kept as
separate standalone PDFs?)

Would also be nice to know whether staff or Petter had heard back from
GNSO Council / Heather / Susan re: ideas for adjust our timeline, as
per yesterday's call (i.e. if they moved the GNSO Council call back a
week, that would give us more time; or if they made a special meeting
between the scheduled July/August calls). Because, I think it'll be
very hard to be done by Monday....would be nice to hear from them
*before* Thursday's call (rather than leaving it until after
Thursday's call, when there's no limited time before the Monday
"deadline").

Sincerely,

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



On Mon, Jul 2, 2018 at 7:10 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear Working Group members,
>
>
>
> Staff has posted copies, in both Word and PDF formats, and in both redlined
> and clean versions, of the updated Draft Final Report for your review on the
> Working Group wiki space: https://community.icann.org/x/UoVHBQ. You will
> also find links to the most recent GAC Communique (from ICAN62 in Panama
> last week), that includes advice to the ICANN Board concerning our PDP, as
> well as the GNSO Council’s resolution also from Panama, requesting that we
> complete our Final Report by 9 July 2018 (the document deadline for the
> Council’s July meeting). We have done our best to capture what we believe to
> be the most current and agreed text, especially of the specific
> recommendations and consensus levels, but remain ready to make further
> updates and corrections as may be needed.
>
>
>
> Please note the following:
>
> Please limit your suggestions for edits and corrections to substantive
> matters (e.g. errors of substance) rather than formatting, typos, preferred
> word usages/phrasing, or grammar (unless there are egregious errors). This
> will allow us to complete our work as expeditiously as possible, as seems to
> be expected by the GNSO Council.
> Please do not send back redlines of the document, as it can be difficult to
> track and capture multiple versions. Instead, please send your comments via
> email to this mailing list so that staff can make sure all substantive
> comments are noted and addressed.
> The redline was done against the last version of the draft that was
> circulated (i.e. the 11 May document). The redlined changes that you see are
> therefore either new additions, corrections or modifications of the text
> from 11 May, for which members had been asked to submit comments by 22 May.
> Please therefore do not suggest further edits to the non-redlined text
> unless you see egregious errors that were not previously spotted (especially
> as much of the 11 May 2018 text was retained from the January 2017 Initial
> Report).
> We have added a few comment boxes to indicate where and why certain
> insertions/changes were made (especially as regards rationale and specific
> suggestions made either to the 11 May document or on the recent Working
> Group calls).
> We have also updated the GAC advice to include the GAC’s most recent
> Communique, issued last week in Panama City.
> We have not included references to the recent and ongoing appeal filed by
> George under Section 3.7 of the GNSO Working Group Guidelines, as that
> process has so far proceeded separately from the Working Group’s final
> deliberations – but please let us know if this should be added.
>
>
>
> Process for filing Minority Statements:
>
> As minority statements are not reviewed or edited by the Working Group or
> staff, they can be sent in any time. For purposes of meeting the Council’s
> requested deadline, however, it will be helpful if you can send to staff any
> minority statement that you may wish to file in Word format by 1200 UTC on
> Monday 9 July.
>
>
>
> Our understanding is that Petter would like to discuss, and hopefully attain
> agreement on, any substantive errors or omissions in the report at our
> meeting this Thursday, 5 July. As such, please be sure to review the
> redlined changes before the call if you can. We apologize for the short
> notice, as the ICANN62 meeting last week made it impossible for us to
> complete the draft before today. (NOTE: If you wish to focus on the major
> substantive issues, you may wish to begin your review with Section 1.2
> (pages 3-7 of the redlined Word version) and a portion of Section 2.1.1
> (pages 10- 22 of the redlined Word version).)
>
>
>
>
>
> Thank you.
>
>
>
> Best regards,
>
> Mary & Steve
>
>
>
>
>
>
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