[Gnso-igo-ingo-crp] FOR REVIEW: Updated Draft Final Report
Corwin, Philip
pcorwin at verisign.com
Thu Jul 5 14:07:48 UTC 2018
I don’t understand the proposed language.
If an IGO succeeds in asserting an immunity defense there will be no legal proceedings because the case will be dismissed.
The basic rule for judicial “appeals” of UDRP decisions is that they are de novo proceedings with no reference on the merits to the preceding UDRP; they are not determined per the UDRP factors but under the statute law of the jurisdiction regarding trademark infringement. Reference to the preceding UDRP case would arise where an immunity defense is raised on the question of whether the IGO waived immunity by filing a UDRP, but if the defense is not successful the proceeding will proceed de novo on the merits.
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Tattersfield
Sent: Thursday, July 05, 2018 9:53 AM
To: George Kirikos <icann at leap.com>
Cc: gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] FOR REVIEW: Updated Draft Final Report
Thanks George for the reminder about the lack of html formatting on the mailing lists - Its like something out the ark from the early days of the internet.
On option #1 text - "Similarly, where an IGO chooses to defend its immunity claim against a registrant in court and succeeds, the legal proceedings should be conducted as if the UDRP or URS determination was never made."
I know what you are try to convey but ICANN has no control over any legal proceedings so the text can not stand as is. Decisional sequencing is involved, what we need to concentrate on is a dismissal on lack of personal jurisdiction prior to a decision on the merits. This too important to be in a minority opinion.
On Thu, Jul 5, 2018 at 2:20 PM, George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:
I wouldn't support removal of that last line of Option #1's
explanation. That's an important line. If anything, we should be
expanding the explanatory text, not reducing it. [changing 'mirror' to
'align' is fine] That's a point I made (#17) in my earlier comments:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001349.html
Given the compressed timeline [well, not really a 'given', since we're
arguing about it!], rather than expanding each of them further, the
better option might be to leave expanded text to the minority reports,
as I noted in comment #17.
By the way, none of the HTML formatting appears properly in the web archive:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001357.html
When suggesting changes, it's best to keep that in mind, so that
there's a proper historical record on the mailing list.
Sincerely,
George Kirikos
416-588-0269
http://www.leap.com/
On Thu, Jul 5, 2018 at 8:59 AM, Paul Tattersfield <gpmgroup at gmail.com<mailto:gpmgroup at gmail.com>> wrote:
> In section 2.1.1 under Recommendation #5 (pages 17 – 21) please can we
> consider making the following changes?
>
> Option #1 text
>
> This option was suggested to mirror align with the situation where an IGO,
> instead of filing a UDRP or URS complaint, chooses to file a lawsuit in
> court. In such an event, the IGO will not be entitled to any jurisdictional
> immunity (having elected to initiate the proceedings) and the court will
> proceed to decide the case on its merits. Similarly, where an IGO chooses to
> defend its immunity claim against a registrant in court and succeeds, the
> legal proceedings should be conducted as if the UDRP or URS determination
> was never made.
>
>
> Option #3 text
>
> This option was suggested in an attempt to balance the group’s agreement
> that, for all six options, any additional outcomes should be permitted only
> after an IGO has successfully claimed immunity in court with GAC advice for
> appeals to be handled by an arbitral tribunal rather than via judicial
> proceedings.
>
> This is very misleading option #3 existed prior to #2, #4, #5, #6
>
>
> Option #6 text
>
> This option was suggested following a review of the mandatory mediation step
> that is included in Nominet’s DRP for the .uk domain, and includes the
> ability to introduce an arbitration component (if the registrant also has
> the ability to choose this option) as well as aspects of Option 1.
>
> This option was suggested following a review of the mandatory mediation step
> that is included in Nominet’s DRP for the .uk domain, and includes the
> ability to introduce an arbitration component (which the registrant is free
> to choose as an alternative to judicial proceedings) as well as aspects of
> Option 1.
>
>
> On Thu, Jul 5, 2018 at 12:39 PM, Paul Tattersfield <gpmgroup at gmail.com<mailto:gpmgroup at gmail.com>>
> wrote:
>>
>> In section 2.1.1 under Recommendation #3 under paragraph 2 (page 16 of 91)
>> please can we add an additional explanatory paragraph?
>>
>> This recommendation originated in the Working Group’s initial preliminary
>> recommendation (published in its Initial Report) concerning an IGO’s
>> standing to file a UDRP or URS complaint based on compliance with the
>> communications and notification procedure under Article 6ter of the Paris
>> Convention. In that preliminary recommendation, the Working Group had made a
>> distinction between the procedural matter of standing and the further need
>> for a complainant to prove that it has also satisfied the substantive
>> elements required by the UDRP and URS. The Working Group had therefore
>> recommended that a Policy Guidance document be prepared and issued by ICANN
>> to clarify the applicability of Article 6ter as well as the other procedural
>> options available to IGOs. In light of the Working Group’s subsequent
>> decision to modify its original recommendation concerning Article 6ter, its
>> recommendation for Policy Guidance has also been amended to refer
>> specifically to the procedural filing options available under the current
>> UDRP and URS.
>>
>> Policy Guidance should advise the IGOs and INGOs in the first instance to
>> contact the registrars of record for any domains involved in the harms they
>> are seeking address. The overwhelming majority of registrars are willing to
>> deal with such behaviour at no cost and in a timely manner for both
>> infringing and non infringing domains. In the unlikely event a registrar
>> would not wish to help ICANN has contractual provisions in place to
>> investigate the reasons for such a decision.
>>
>> On Tue, Jul 3, 2018 at 12:10 AM, Mary Wong <mary.wong at icann.org<mailto: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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>>> Gnso-igo-ingo-crp at icann.org<mailto:Gnso-igo-ingo-crp at icann.org>
>>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>>
>>
>
>
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