[Gnso-igo-ingo-crp] FOR REVIEW: Updated Draft Final Report

Corwin, Philip pcorwin at verisign.com
Thu Jul 5 14:25:29 UTC 2018 

If that is supposed to be a rationale for Option 1 the language should be determined by those who support it. I am not in that camp.

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

-----Original Message-----
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of George Kirikos
Sent: Thursday, July 05, 2018 10:14 AM
To: gnso-igo-ingo-crp at icann.org
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] FOR REVIEW: Updated Draft Final Report

It can be reworded slightly, but the key was that the UDRP/URS decision is set aside, so that it can't impact any future legal proceedings. Your point is already captured by the first part of that sentence, though. Perhaps something like:

"Similarly, where an IGO chooses to assert an immunity defense against a registrant's claim in court and succeeds in avoiding a decision based on the underlying merits of the dispute, the UDRP or URS determination should be set aside so that both parties are in the exact same legal position they were prior to the UDRP or URS dispute (with all rights of each side intact). This ensures that any subsequent litigation is not prejudiced or interfered with by the UDRP or URS determinations and that any litigation regarding the domain name can truly be conducted on a de novo basis."

Sincerely,

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


On Thu, Jul 5, 2018 at 9:52 AM, Paul Tattersfield <gpmgroup at gmail.com> wrote:
> 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> 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.htm
>> l
>>
>> 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.htm
>> l
>>
>> 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>
>> 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>
>> > 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> 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
>> >>>
>> >>>
>> >>>
>> >>>
>> >>>
>> >>>
>> >>> _______________________________________________
>> >>> Gnso-igo-ingo-crp mailing list
>> >>> Gnso-igo-ingo-crp at icann.org
>> >>> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>> >>
>> >>
>> >
>> >
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