[Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus

Paul Tattersfield gpmgroup at gmail.com
Tue Jun 19 08:58:54 UTC 2018


The Swaine memo is a part of our Final Report, as a part of the record of
our WG, but is not determinative of the WG’s outcomes – as you all can see.



Swaine is wrong, Swaine is confused, Swaine discusses irrelevant
complexity. Quite frankly it’s junk. I have shown in less than a single
page why and how Swaine can never be right. It's simple, go read my proof
and show me why I am wrong if you want to include Swaine.



One example on the difficulties in court actions is, even if it was not an
IGO-related case, from the article about the YoYo.email Limited vs. the
Royal Bank of Scotland Group PLC case that Mr Kirikos informed the RPM WG
of in an e-mail of January 3, 2018. The High Court commented in their
decision that:



"… it is trite law that an agreement cannot confer a jurisdiction on the
court which it does not otherwise have. Under the [UDRP] the Registrar will
abide by a judicial decision, but the function of this Court is not as a
judicial review or appellate body. The claimant must demonstrate some
independent right of action justiciable in this Court. Thus if a complaint
is dismissed, the complainant may refer the case to the Court for an order
that its trade mark has been infringed. If, on the other hand, the
complaint is upheld, the burden is not on the complainant to establish
infringement. It is for the registrant to plead and prove a cause of action
giving him an interest in retaining the domain name. An unsuccessful
registrant therefore faces considerable difficulty in identifying a cause
of action upon which the Panel's decision can be challenged..."



Sheesh! You are not seriously trying to use this to support keeping Swaine
in the final report are you?



As concluded by Prof. Swaine on our topic, there is a legal grey zone, and
as long as we cannot make a 100% clear legal force that all national courts
in all countries around the world has to follow, it is better to find a
solution where both the domain holder and the IGO can have their case
decided upon, hearing both parties.



On immunity there is no grey area it is incredibly simple; if the IGOs
choose to initiate proceedings jurisdictional immunity can NEVER be a
defence. I have shown this very clearly in the proof I have submitted. The
proof is very short less than a page, go and read it and show me why my
proof is wrong. The working group’s consensus around option #1 reflects
this you should respect it.

Please also have in mind that we are not just to solve a problem for IGO
and INGO's, we also need to have the domain holders interest in mind, and
find solutions where both parties can be sure that they have the
possibility to have the case finally decided outside the URS or UDRP.

If the co-chairs had not wanted to repeatedly impose their ridiculous and
inelegant option #3 on the world the working group could have used its time
more usefully to improve process for all parties. That was what option #6
was about but Phillip supported by you was obsessed with driving option #3
through at all costs.


1 Original proof
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf
with colours)
2 Expanded proof
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf
with colours)

On Mon, Jun 18, 2018 at 6:47 PM, Petter Rindforth <
petter.rindforth at fenixlegal.eu> wrote:

> Dear Paul and all WG members,
>
> The Swaine memo is a part of our Final Report, as a part of the record of
> our WG, but is not determinative of the WG’s outcomes – as you all can see.
>
> One example on the difficulties in court actions is, even if it was not an
> IGO-related case, from the article about the YoYo.email Limited vs. the
> Royal Bank of Scotland Group PLC case that Mr Kirikos informed the RPM WG
> of in an e-mail of January 3, 2018. The High Court commented in their
> decision that:
>
> *"… it is trite law that an agreement cannot confer a jurisdiction on the
> court which it does not otherwise have. Under the [UDRP] the Registrar will
> abide by a judicial decision, but the function of this Court is not as a
> judicial review or appellate body. The claimant must demonstrate some
> independent right of action justiciable in this Court. Thus if a complaint
> is dismissed, the complainant may refer the case to the Court for an order
> that its trade mark has been infringed. If, on the other hand, the
> complaint is upheld, the burden is not on the complainant to establish
> infringement. It is for the registrant to plead and prove a cause of action
> giving him an interest in retaining the domain name. An unsuccessful
> registrant therefore faces considerable difficulty in identifying a cause
> of action upon which the Panel's decision can be challenged..."*
>
>
> As concluded by Prof. Swaine on our topic, there is a legal grey zone, and
> as long as we cannot make a 100% clear legal force that all national courts
> in all countries around the world has to follow, it is better to find a
> solution where both the domain holder and the IGO can have their case
> decided upon, hearing both parties.
>
> Again, please prepare Minority Statements of those details and parts you
> don’t agree upon.
>
> Please also have in mind that we are not just to solve a problem for IGO
> and INGO's, we also need to have the domain holders interest in mind, and
> find solutions where both parties can be sure that they have the
> possibility to have the case finally decided outside the URS or UDRP.
>
> Our next meeting, as you can see from the invitation sent out earlier
> today, is this upcoming Thursday, 21 June 2018 at 16:00 UTC for 90 minutes
> .
>
> I look forward to an effective meeting where we - with respect for each
> other's different opinions - can make decisions about the remaining
> statements.
> All the best,
> Petter
> --
> Petter Rindforth, LL M
>
>
>
>
>
> Fenix Legal KB
> Stureplan 4c, 4tr
> 114 35 Stockholm
> Sweden
> Fax: +46(0)8-4631010
> Direct phone: +46(0)702-369360
> E-mail: petter.rindforth at fenixlegal.eu
> www.fenixlegal.eu
>
> NOTICE
> This e-mail message is intended solely for the individual or individuals
> to whom it is addressed.
> It may contain confidential attorney-client privileged information and
> attorney work product.
> If the reader of this message is not the intended recipient, you are
> requested not to read,
> copy or distribute it or any of the information it contains.
> Please delete it immediately and notify us by return e-mail.
> Fenix Legal KB, Sweden, www.fenixlegal.eu
> Thank you
>
>
> 17 juni 2018 20:54:37 +02:00, skrev Paul Tattersfield <gpmgroup at gmail.com
> >:
>
> Dear Petter,
>
> The problem is the issue I am raising is overarching – I have shown very
> clearly why the IGOs are never entitled to immunity after they have chosen
> to initiate proceedings in ANY forum. I have also shown very precisely
> where Swaine went wrong in his reasoning.
>
> Petter wrote:
>
>
> *“And I cannot see that Prof Swaine clearly states that IGO’s have the
> right to refer to their immunity. Instead, he states several times that the
> fact that an IGO has accepted a URS or UDRP case, is also likely to be seen
> as a waiver of their immunity. This seems especially related to UN: …” *This
> misses the point the IGOs are choosing to initiate proceedings. Professor
> Swaine has analysed the scenario where an IGO is defending an initial
> action and then assumed incorrectly that any immunity rights enjoyed where
> an IGO is defending an action can be “transferred/allocated/applied” to
> the scenario where an IGO brings an action as the plaintiff (or claimant).
> When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to
> jurisdictional immunity.
>
> I have responded to all of Mary’s points in this thread and in more detail
> to the other thread where Paul K. supported my concerns and David drew
> attention to the United Nations Convention on Jurisdictional Immunities of
> States and Their Property treaty.
>
> Further I have reached out to as many people as possible inviting them to
> refute my reasoning and so far no one has been able to show how I am even
> slightly wrong including people who have represented IGO interests.
>
> Please show me how my proof is anyway wrong….
>
> Yours sincerely,
>
>
> Paul.
>
> Original proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html
> (.pdf with colours)
>
> Expanded proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html
> (.pdf with colours)
>
> On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth <
> petter.rindforth at fenixlegal.eu> wrote:
>
> Dear Paul and WG Members,
>
> As you all know, we had a call on February 16, 201*6* to discuss Prof
> Swaine’s memo, and it was further discussed during 2016. I also tried to
> see from your (Paul) e-mails of December 2016 (especially of December 14,
> 2016), when we discussed the details of our Draft Initial Report that Mary
> had sent to our WG, but I could not find any specific note there by you on
> the report, other than suggestions to fix some typos in our DIR.
>
> Prof Swaine’s memo and report is in fact a part of our work and report, to
> refer to. And I cannot see that Prof Swaine clearly states that IGO’s have
> the right to refer to their immunity. Instead, he states several times that
> the fact that an IGO has accepted a URS or UDRP case, is also likely to be
> seen as a waiver of their immunity. This seems especially related to UN:
>
> “Article 2(2) of the General Convention, the UN’s absolute immunity from
> legal process (other than relative to execution) may be expressly waived in
> particular cases. National law may also resolve the matter. For example,
> the IOIA provides relevant IGOs with immunity (on the same terms as
> afforded states) “except to the extent that such organizations may
> expressly waive their immunity for the purpose of any proceedings or by the
> terms of any contract.”
>
> What Prof Swaine however also points out, is the fact that all national
> law worldwide is not clear, and further that it is also up to each national
> court to decide to accept immunity or not, and especially IGO's that are
> not UN related has not the same exact position.
>
> His conclusion was that the topic is not 100% clear (which ofcourse IGO's
> does not agree upon, as the same with you - however with two completely
> different views).
>
> Option 3 has covered such possible situation, and made sure that also in
> (possible rare) cases where a national court accept immunity, the domain
> holder can at least have possibility to get the case decided by
> arbitration. (= *This was my short personal note, knowing that the
> majority of the WG does not agree with establishing such solution*).
>
> *To summarize:*
>
> We have Prof. Swaine’s report to refer to and that has for long time been
> a part of, and reference, related to our full report.
>
> Paul, I appreciate your work with comments, and recommend that you prepare
> a Minority Statement in regard to the Swaine memo.
>
> Also, a reminder to other WG members that support Options with no majority
> from the WG, please prepare your Minority Statements.
>
> *Finally:*
>
> Please focus on our Final Report and keep the suggestions within our WG
> mailing list. We are close to make a conclusion on each Recommendation and
> Option. It is better for us all to effectively conclude our work now in a
> friendly manner, and create our Final Report, that can then be further
> discussed by others.
>
> Best regards,
> Petter
>
> --
> Petter Rindforth, LL M
>
>
>
>
>
> Fenix Legal KB
> Stureplan 4c, 4tr
> 114 35 Stockholm
> Sweden
> Fax: +46(0)8-4631010
> Direct phone: +46(0)702-369360
> E-mail: petter.rindforth at fenixlegal.eu
> www.fenixlegal.eu
>
> NOTICE
> This e-mail message is intended solely for the individual or individuals
> to whom it is addressed.
> It may contain confidential attorney-client privileged information and
> attorney work product.
> If the reader of this message is not the intended recipient, you are
> requested not to read,
> copy or distribute it or any of the information it contains.
> Please delete it immediately and notify us by return e-mail.
> Fenix Legal KB, Sweden, www.fenixlegal.eu
> Thank you
>
>
> 15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup at gmail.com
> >:
>
> Staff directs your attention to those parts of the memo where Professor
> Swaine writes as follows (emphasis added):
>
>
>
>
> “ …the situation raises at least two distinct immunity issues. The first
> is whether, in principle, an IGO would enjoy immunity from judicial process
> with respect to name-related rights it might assert in the UDRP
> proceedings. *The answer depends on whether jurisdiction in which the
> case arises would apply an absolute, functional, or restrictive immunity
> approach to the IGO in question. That may be hard to predict*.
>
> Wrong –  Immunity is only a defence where an IGO is a defendant NOT a
> claimant.  In the initial claim the IGO is the claimant whether it be a
> UDRP claim or a judicial claim.
>
>
> In the United States, for example, unless an IGO benefits from broader
> treaty protections—as the United Nations, but not its specialized agencies,
> does, because the United States is only party to a treaty governing the
> former’s immunity—the question is addressed by the International
> Organizations Immunities Act (the IOIA), but some courts interpret the
> statute as establishing absolute immunity and others view it as
> establishing restrictive immunity only. The answer is a bit more
> straightforward elsewhere, and other states tend to favor either an
> absolute or a functional approach. *The choice among these approaches
> would be material.*
>
> Yes immunity is complex, very complex, but it is not relevant because the
> IGO is the initiating the claim.
>
> If an IGO is entitled to absolute immunity, it would in principle be
> protected from a suit of the kind in question, and probably under a
> functional approach as well—because an IGO’s protection of its name is
> likely to be deemed part of its functions. Immunity is less likely under a
> restrictive approach, which might regard this as more akin to
> trademark-related activity that is commercial in character.
>
>
>
>
>
> *The second, more relevant, question is whether—in light of an IGO’s
> assent to Mutual Jurisdiction, by virtue of its initiation of UDRP
> proceedings (or its registration of a domain name)—its immunity remains.
> Here, the more likely answer is that it would not.*
>
> Wrong, the mutual jurisdiction clause is a separate very high hurdle in a
> litigation strategy for an IGO. There is no immunity to remain – see above.
>
> IGOs are capable of waiving their immunity from suit, and if they do so,
> they may no longer interpose immunity as a defense if another party
> commences a judicial action falling within the scope of that waiver. The
> grant of Mutual Jurisdiction should establish such a waiver, just as it
> would for a state entity otherwise entitled to immunity. This waiver would
> be construed narrowly, but it would likely permit proceeding against an IGO
> in at least some domestic courts.
>
>
>
>
>
> *The overall answer, then, is contingent.*
>
> Wrong – no it isn’t contingent there is no immunity to defend – see above
>
> If there were no Mutual Jurisdiction clause, an IGO might be entitled to
> immunity to judicial process; if, on the other hand, the Mutual
> Jurisdiction clause were maintained, as in the status quo, the IGO’s
> immunity is less germane because it would have been waived. Equitable
> considerations might influence any judicial analysis …
>
>
>
>
> Accordingly, an IGO complainant will have consented to judicial
> proceedings if a losing respondent wishes to challenge a cancellation or
>
> —in a jurisdiction that the IGO will have selected, but from limited
> choices that the registrant can craft through its choice of registrar and
> its registering address …
>
> *How matters unfold from that point will depend on national law.*This is
> a truism but is not relevant because there is no immunity to defend
>
>
>
>
> *In short, the Mutual Jurisdiction concession means that certain IGOs will
> have agreed to the possibility of a judicial process, *
> That’s right - that’s what the mutual jurisidiction clause is for, That is
> how it should be. If you make an allegation and ask a forum to rule on it
> to you have to be prepared to defend the allegation including counterclaims
>
> *notwithstanding any immunity to which they otherwise would be entitled*.”
>
>
> Wrong – there isn’t any immunity to defend – see above
>
>
>
>
>
>
> As such, Professor Swaine seems to have acknowledged that, in many
> instances where a losing registrant files suit against a prevailing IGO in
> a national court, the court is likely to rule that the IGO will have waived
> its immunity. He also points out that this is *not* necessarily always
> the case as it may depend on the approach that national court takes toward
> the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere,
> there is no single, universal, unified principle that determines the result
> across all national courts; and there is no single international treaty
> that applies to all IGOs and to which all states are party.
>
>
>
> Thus, Professor Swaine’s expert legal opinion seems to us to be saying
> that while it is likely that in many jurisdictions an IGO will *not*
> succeed in claiming immunity from jurisdiction, this is not to be assumed
> as a certainty in all jurisdictions globally. It may be a rare case that an
> IGO succeeds, but it is at least a possibility in a few jurisdictions.
>
>
> We trust this is sufficiently clear.
>
>
> If you want to challenge my proof you need show in the text which I have
> included again below for completeness why I am wrong not quote from the
> report which based on the errors I am alleging.
>
>
> Looking at what Professor Swaine said:
>
>
>
> *“The scope of IGO immunity would most clearly be at issue if the Mutual
> Jurisdiction provision were irrelevant and the IGO had not itself initiated
> judicial proceedings, since that would risk waiving any immunity to which
> it may be entitled, including to counterclaims.”*I think we can all agree
> that; initiating proceedings waives immunity including counterclaims.
>
>
>
>
> *“This might be the case, for example, if a domain-name registrant sought
> a declaratory judgment against an IGO in relation to some actual or
> potential infringement.” *I think we can all agree that; if a TM owner
> starts proceedings to acquire a domain which an IGO has registered then an
> IGO would be entitled to use jurisdictional immunity to prevent a hearing
> taking place.
>
>
>
>
> *“That scenario, though not otherwise of concern here, does usefully
> isolate the question as to whether an IGO has a legitimate expectation that
> it would be entitled to immunity absent the UDRP”*I think we can all
> agree that; the working group has not and will not consider the case where
> a TM owner starts proceedings against an IGO.
>
>
> *Here’s the problem*
>
> What Professor Swaine has done is say well he’s isolated a situation where
> an IGO would be entitled to claim an immunity defence absent UDRP so now
> he’s good to go for the rest of his report on immunity.
>
> Wrong.
>
> Just because Professor Swaine has identified a situation where an IGO is
> entitled to claim an immunity defence doesn’t mean he can then apply it to
> other situations
>
>
> *.*
>
> *Proof*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.
>
> As the UDRP is an administrative procedure to help take less complex cases
> out of the judicial system if UDRP is to afford the same protections as any
> other forum then UDRP needs to take into account both scenarios.
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
>
> *Let’s confirm what is happening with colours:*
> Blue = An immunity defence is good to go
> Red = An immunity defence is a no-no
>
> Applying the logic Professor Swaine has used we have
>
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
> What Professor Swaine is asking the reader to accept is the right to an
> immunity defence can be applied to both (a) and (b) scenarios and this can
> not be right because
>
> Absent UDRP we have
>
> (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
>
> So the correct position at UDRP is
> (a) A TM owner seeks to acquire a domain which an IGO has registered by
> bringing a UDRP
> (b) An IGO seeks to acquire a domain which a domain registrant has
> registered by bringing a UDRP
>
>
> Quite simply the IGOs are never entitled to jurisdictional immunity after
> initiating proceedings.
>
> On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong at icann.org> wrote:
>
> Hello again Paul and everyone,
>
>
>
> Staff directs your attention to those parts of the memo where Professor
> Swaine writes as follows (emphasis added):
>
>
>
> “ …the situation raises at least two distinct immunity issues. The first
> is whether, in principle, an IGO would enjoy immunity from judicial process
> with respect to name-related rights it might assert in the UDRP
> proceedings. *The answer depends on whether jurisdiction in which the
> case arises would apply an absolute, functional, or restrictive immunity
> approach to the IGO in question. That may be hard to predict*. In the
> United States, for example, unless an IGO benefits from broader treaty
> protections—as the United Nations, but not its specialized agencies, does,
> because the United States is only party to a treaty governing the former’s
> immunity—the question is addressed by the International Organizations
> Immunities Act (the IOIA), but some courts interpret the statute as
> establishing absolute immunity and others view it as establishing
> restrictive immunity only. The answer is a bit more straightforward
> elsewhere, and other states tend to favor either an absolute or a
> functional approach. *The choice among these approaches would be
> material.* If an IGO is entitled to absolute immunity, it would in
> principle be protected from a suit of the kind in question, and probably
> under a functional approach as well—because an IGO’s protection of its name
> is likely to be deemed part of its functions. Immunity is less likely under
> a restrictive approach, which might regard this as more akin to
> trademark-related activity that is commercial in character.
>
>
>
> *The second, more relevant, question is whether—in light of an IGO’s
> assent to Mutual Jurisdiction, by virtue of its initiation of UDRP
> proceedings (or its registration of a domain name)—its immunity remains.
> Here, the more likely answer is that it would not.* IGOs are capable of
> waiving their immunity from suit, and if they do so, they may no longer
> interpose immunity as a defense if another party commences a judicial
> action falling within the scope of that waiver. The grant of Mutual
> Jurisdiction should establish such a waiver, just as it would for a state
> entity otherwise entitled to immunity. This waiver would be construed
> narrowly, but it would likely permit proceeding against an IGO in at least
> some domestic courts.
>
>
>
> *The overall answer, then, is contingent.* If there were no Mutual
> Jurisdiction clause, an IGO might be entitled to immunity to judicial
> process; if, on the other hand, the Mutual Jurisdiction clause were
> maintained, as in the status quo, the IGO’s immunity is less germane
> because it would have been waived. Equitable considerations might influence
> any judicial analysis …
>
>
>
> Accordingly, an IGO complainant will have consented to judicial
> proceedings if a losing respondent wishes to challenge a cancellation or
>
> —in a jurisdiction that the IGO will have selected, but from limited
> choices that the registrant can craft through its choice of registrar and
> its registering address … *How matters unfold from that point will depend
> on national law.*
>
>
>
> *In short, the Mutual Jurisdiction concession means that certain IGOs will
> have agreed to the possibility of a judicial process, notwithstanding any
> immunity to which they otherwise would be entitled*.”
>
>
>
> As such, Professor Swaine seems to have acknowledged that, in many
> instances where a losing registrant files suit against a prevailing IGO in
> a national court, the court is likely to rule that the IGO will have waived
> its immunity. He also points out that this is *not* necessarily always
> the case as it may depend on the approach that national court takes toward
> the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere,
> there is no single, universal, unified principle that determines the result
> across all national courts; and there is no single international treaty
> that applies to all IGOs and to which all states are party.
>
>
>
> Thus, Professor Swaine’s expert legal opinion seems to us to be saying
> that while it is likely that in many jurisdictions an IGO will *not*
> succeed in claiming immunity from jurisdiction, this is not to be assumed
> as a certainty in all jurisdictions globally. It may be a rare case that an
> IGO succeeds, but it is at least a possibility in a few jurisdictions.
>
>
>
> We trust this is sufficiently clear.
>
>
>
> Best regards,
>
> Mary & Steve
>
>
>
> *From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf
> of Paul Tattersfield <gpmgroup at gmail.com>
> *Date: *Friday, June 15, 2018 at 17:17
> *To: *"petter.rindforth at fenixlegal.eu" <petter.rindforth at fenixlegal.eu>
> *Cc: *"gnso-igo-ingo-." <gnso-igo-ingo-crp at icann.org>
> *Subject: *Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and
> identify level of consensus
>
>
>
> Dear Petter,
>
> On Swaine I do not believe what you are proposing is acceptable. This
> isn’t some minor matter for a minority opinion Swaine underpins the whole
> of the working group’s final report. I have shown very clearly in plain
> language how Swaine introduces horrendously complex issues which have
> absolutely no relevance whatsoever to what the working group has been asked
> to consider.
>
> Both Paul Keating & George Kirikos have both indicated they share my
> concerns that Swaine can never be considered correct on this matter and in
> the alternative no one has voiced any dissent to the expanded proof I
> outlined. The only person to offer any comments has been Mary and she did
> not address the core issue I was raising and has chosen so far not to
> dispute or comment further on the expanded proof. (For completeness Phillip
> said he was proud of Swaine)
>
> You have chosen not to comment too. Do you also still personally believe
> what I am saying is wrong and that Swaine can possibly be correct in his
> findings?
>
> If so please can you please explain to the working group how Swaine can
> possibly be correct because the report fails to adequately acknowledge or
> address the indisputable fact that IGOs automatically waive immunity every
> time they commence a legal proceeding?
>
> Yours sincerely,
>
>
> Paul.
>
> Expanded proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html
> (.pdf with colours)
>
> Original proof
> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html
> (.pdf with colours)
>
>
>
> On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth <
> petter.rindforth at fenixlegal.eu> wrote:
>
> Dear Working Group members,
>
>
>
> In light of the need for us to complete our work, in my role as the Chair,
> I ask you all to now focus on the task at hand, which is to finalize
> agreement on the appropriate consensus levels for each recommendation. In
> this regard, please note the following:
>
>
>
> (1) I have put the most current, likely consensus levels here in this
> message and will appreciate further feedback;
>
> (2) we need now also to focus on discussing where we want to end up in
> relation to Option 1 and Option 4, which may be mutually incompatible; and
>
> (3) where you have made a suggestion on any specific point/topic but it
> has not received support, I ask that you consider filing a Minority
> Statement now rather than continue to argue the point.
>
>
>
> On consensus levels, and based on our call earlier this week and the more
> recent list discussions:
>
>
>
> *Recommendation 1:* Full Consensus (with additional text in the rationale
> about why this recommendation was phrased to cover INGOs, and noting that
> IGOs are covered by the remaining recommendations which nevertheless do not
> require changing the UDRP or URS beyond what may be necessary to effectuate
> those additional recommendations – I note that this last caveat may of
> course not be necessary if the group reaches consensus on Option 4 versus
> Option 1, as we are currently discussing).
>
>
>
> *Recommendation 2: *Consensus (with slight amendment to the
> recommendation text to reflect “trademark or service mark rights” where we
> mention “unregistered” rights).
>
>
>
> *Recommendation 3:* Consensus
>
>
>
> *Recommendation 4: *Strong Support but Significant Opposition (with
> additional text in the rationale to note that several members are strongly
> against subsidies of any sort).
>
>
>
> *Recommendation 5/Options 1-6* (which we can renumber/title in the Final
> Report to avoid confusion):
>
>
>
> Option 1 – Consensus or Strong Support but Significant Opposition
>
> Option 2 – No Consensus/Divergence
>
> Option 3 – Minority View (Consensus Against)
>
> Option 4 – Consensus or Strong Support but Significant Opposition
>
> Option 5 – No Consensus/Divergence
>
> Option 6 – Strong Support but Significant Opposition
>
>
>
> *On reconciling Options 1 & 4:*
>
>
>
> If, from the above tentative consensus listing, the group agrees that
> either Option 1 or Option 4 has sufficient consensus (but not the other),
> there will not be a conflict. Please therefore weigh in with your thoughts
> on the current consensus levels for these two options. I have seen some
> informal notes from WG members that support both Option 1 and Option 4,
> clarifying that they prefer Option 1 before Option 4, but please make such
> statements/clarification again.
>
>
>
> Similarly, if we end up with Strong Support but Significant Opposition for
> both, we can just transmit both to the Council without the need for further
> discussion (but possibly with text that can include implementation guidance
> for Option 1).
>
>
>
> For Option 1 – this will require a change to the UDRP and URS, so if this
> is the final consensus position, staff will add draft text to the report
> with implementation guidance.
>
>
>
> *On Minority Statements:*
>
>
>
> 1) As Susan suggested on the call, Paul Tattersfield may want to consider
> filing a Minority Statement in regard to the Swaine memo, as despite
> several emails on the topic over the last month or two and on the Working
> Group calls, there has not been much support to remove the memo from the
> report.
>
>
>
> 2) Similarly, those who support recommendations/options that end up as
> either No Consensus/Divergence or Minority View should consider preparing
> Minority Statements (as I believe Phil has already indicated he may do).
>
>
>
> Thank you to all who are contributing to a productive discussion. I ask
> that we refrain from questioning others’ credibility or credentials, stop
> bringing up old threads and posts again, and focus on getting to the final
> consensus. We had a good, friendly and effective call this Tuesday – let us
> continue that way also online!
>
>
>
> Best regards,
>
> Petter
>
> --
>
> Petter Rindforth, LL M
>
>
>
> [image: cid:49D61470-C55F-44F0-AA45-8F4196542C10]
>
>
>
> [image: cid:18E3001D-CCA2-4E3F-8E79-FDEB70779A8D]
>
>
>
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