[Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

Corwin, Philip pcorwin at verisign.com
Mon Jun 11 18:29:11 UTC 2018

Jim, I’d have to look at the URS, but I know that the UDRP provides that if an appeal lawsuit is dismissed the prior UDRP decision will be implemented. So how could recommendation #1 be given effect without an amendment to that part of the UDRP?

Best, Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190



"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 Bikoff, James
Sent: Monday, June 11, 2018 2:23 PM
To: Nat Cohen <ncohen at telepathy.com>
Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

All, please understand my position in support of recommendation 1 that no change to UDRP or URS or special procedure is warranted.

No support for other recommendations.


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James L. Bikoff<http://www.sgrlaw.com/attorneys/bikoff-james/> | Attorney at Law

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<http://www.sgrlaw.com> Smith, Gambrell & Russell, LLP

On Jun 11, 2018, at 9:05 PM, Nat Cohen <ncohen at telepathy.com<mailto:ncohen at telepathy.com>> wrote:

CAUTION: This email is from an external source. Do not click links or attachments unless it's from a verified sender.


   Dear WG members,

   While it will likely be sorted out eventually, I'd like to clarify that my comments regarding Option #3 were not intended to be viewed as supporting that option.

   I wrote in support of Zak's comments, who stated as to Option #3 that "I cannot support it in its present form".

   Similarly while I see a theoretical possibility that option 3 could be structured in a way that I could support, I cannot support it in the absence of a concrete proposal whose merits can be evaluated.  In my view the defects in the UDRP would first have to addressed, either through the RPM WG or through creating an IGO-specific UDRP that better safeguarded domain owners.  But as that has not yet been fleshed out, or even proposed as far as I'm aware, it would be premature to express support for option #3.

   I write now in part because, due to a conflict, I will not be able to participate on tomorrow's call.


   Nat Cohen

   On Thu, Jun 7, 2018 at 3:33 PM, Nat Cohen <ncohen at telepathy.com<mailto:ncohen at telepathy.com>> wrote:

      Dear WG Members,

      I write in support of Zak's positions, and add the following comments-

      Option #1  should work well for IGOs whether they realize it or not.  It is quite rare for a UDRP decision to be challenged in court.  The practical effect of Option #1 is to enable IGOs to avail of the UDRP either directly, or through an agent, and if they win to obtain the transfer of the disputed domain in the likely 90%+ of the instances where the decision is not challenged.  Since in most jurisdictions it is quite expensive to file in a national court, a domain owner is only likely to file if he/she believes the domain name has substantial inherent value unrelated to an IGO's use - which is just the sort of domain that likely should not be ordered transferred through a UDRP.

      IGOs are not being singled out for punitive treatment.  IGOs are requesting special treatment and for the ability to subject domain owners to a flawed and biased quick-and-dirty proceeding without the possibility of judicial recourse.  To assert a domain owner's right to judicial review is not punitive towards IGOs.

      Option #3 - if a procedure was created that genuinely resulted in transfers only in cases of blatant cybersquatting, and that adequately protected the rights of domain investors - which the UDRP does not - then I would be open to giving it strong consideration.


      Nat Cohen

      On Thu, Jun 7, 2018 at 2:23 PM, Zak Muscovitch <zak at muscovitch.com<mailto:zak at muscovitch.com>> wrote:

         Dear WG members:

         Further to the below request for a response to the consensus call, please see my below response:

         1.     I generally support Recommendation #1. I would clarify however, that no “substantive” changes are required (i.e. thereby leaving open the possibility of procedural changes).

         2.     I generally support Recommendation #2, with the caveat that an IGO can demonstrate its rights by showing common law or unregistered rights in a name, for which 6ter compliance can be used.

         3.     I generally support Recommendation #3, and would add that if any procedural adjustments are required to provide greater clarity, that would be consistent with my suggested revision to Recommendation #1.

         4.     I generally support Recommendation #4, however I would note that any exploration of feasibility for providing subsidies to increase access to justice, should be means tested and should not necessarily be restricted to IGO’s, and I would convey this thought in the Recommendation.

         5.     I support Option 4 of Recommendation #5, which I had proposed compromise solution in the absence of universal agreement on which Recommendation this WG makes. I realize that it is not an ideal outcome, but it attempts to balance the perspectives of those who support Option 1, with those that think that a substantial revision to the Policy is required to accommodate IGO interests. In the latter case, such changes IMHO would necessarily have to be undertaken within the broader mandate of the RPM WG which will be looking at the UDRP as a whole.

         I do however, support Option 1 in principle, though I suggest that the word, “vacated” be used instead of “vitiated”. The reason for my support of Option 1 in principle, is that as Mr. Tattersfield has pointed out on numerous occasions, any IGO that commences civil legal proceedings against any stranger for any matter, would necessarily as a matter of course, implicitly waive the jurisdictional immunity that it otherwise has, and I see no reason that the UDRP should be any different.

         I would also support Option 2, as it would be an interesting and reasonable compromise that would drive potentially better policy making.

         I understand Option 3 and appreciate the objective and rationale behind it, although I cannot support it in its present form. Nevertheless, it is a creative solution and attempted compromise. My concerns with it are substantial and twofold;

         a) Any party that commences a civil legal proceeding of any kind against a stranger ipso facto voluntarily and implicitly waives immunity if they have it to begin with, and Option 3 attempts to allow IGO’s to at once avail themselves of the UDRP procedure without giving up their immunity – which as aforesaid – is unjustifiable IMHO since it allows ‘sucking and blowing’ at the same time. Furthermore, registrants have a well founded right to go to court, which they understandably do not want to give up, nor should they be compelled to give it up, particularly since being subjected to the UDRP in the first place involved a grand bargain wherein they would not lose the right to go to court; and

         b) Notwithstanding the foregoing objections, I can nevertheless see how this solution could in principle provide a remedy to this intractable situation which inevitably pits the rights of IGO’s against the rights of registrants (as Dr. Swaine pointed out), but to effect a solution such as this, there would have to be substantial safeguards for the rights of registrants in terms of the nature of the arbitration, such that it would be an attractive trade-off for losing (what many registrants consider to be) the inalienable right to go to court to protect one’s rights and assets, and as presently envisioned I am not satisfied that is the case. As such I am unable to support it. For example, a registrant having to go to court to fight of an immunity claim, or for that matter, an IGO having to go to court to make an immunity claim following a UDRP, seems like an unnecessarily burdensome step for both parties, albeit likely rare. Moreover, the nature of the proposed arbitration at this time is insufficiently clear and therefore provides me with an insufficient basis for considering it to be an adequate substitute for court proceedings.

         If however, I did see a procedure and arbitration framework which provided sufficient comfort and attractiveness such that it was a reasonable and justifiable alternative for registrants in exchange for their right to go to court, that is something that I would further consider.

         I would also support Option 5, which would provide a creative way of allowing a court action without necessarily naming an IGO, however I am uncertain as to whether in rem actions are universally available in all jurisdictions.

         I would also support Option 6 in principle, as mediation can potentially solve many disputes, not just for IGO’s but for UDRP Complainants and Respondents generally. I am uncertain however, where the funding would come from.

         Yours truly,

         Zak Muscovitch

         From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>> On Behalf Of Steve Chan
         Sent: June-05-18 12:02 PM
         To: gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>
         Subject: Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

         Dear WG Members,

         This message is to remind you all that your response to the consensus call, initiated on 25 May, must be sent to the email list by Friday, 8 June in order for it to be taken into proper account in the WG Chair’s assessment of consensus levels. Please see the original message below for further details.

         Note, due to availability issues, we are expecting to move the WG’s next meeting, originally intended for Thursday, 14 June, to Tuesday, 12 June. You can anticipate receiving a meeting invitation in the near future.



         From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>> on behalf of Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>
         Date: Friday, May 25, 2018 at 3:19 PM
         To: "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>>
         Subject: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

         Dear WG Members,

         Attached, please find the compilation of the Working Group’s recommendations and six (6) options related to Recommendation 5. This message is intended to kick of the consensus call process for the WG’s recommendations and remaining options under Recommendation 5. For those WG members who wish to participate in the consensus call, we ask that you respond on the email list to note your support or non-support for all recommendations (i.e., recommendations 1-4) AND the six (6) remaining options under recommendation 5. Please provide your response on or before Friday, 8 June.

         Subsequently, the WG Chair will consider response to the consensus call and seek to designate final consensus levels on the recommendations and options, which will be published to the WG’s email list for WG consideration. WG members will then have the opportunity to object to the designations and the WG may choose to conduct another call on Thursday, 14 June to discuss; WG members will also have the opportunity to file minority statements if applicable, which will be incorporated into a Final Report for the Council by 17 June.

         Note, based on the discussion on the WG’s call held on Friday, 25 May, a handful of changes were made to the attached recommendations/options document, highlighted in yellow (e.g., Recommendation 2, Recommendation 4, Option 4). In addition, footnotes were added, linking to the original rationale and suggestions made by Zak Muscovitch (Option 4), George Kirikos (Option 5) and Paul Tattersfield (Option 6). The same was not done for the first three options as those had been discussed extensively before the additional three options were added and are included unchanged from the text presented in the October 2017 poll.

         If you have any questions, please let us know.


         Steve & Mary

         Steven Chan

         Policy Director, GNSO Support


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