[gnso-igo-wt] Following up on action items from the IGO Work Track's 2 August call

[Mary Wong]

Dear all,

Staff had two action items from this past Monday’s IGO Work Track call: (1) to provide a summary of the concerns that Jay Chapman, on behalf of the BC, had expressed on the call; and (2) to update the draft recommendations document based on suggestions and discussions during the call. We’ve completed both items, as further described below.

On action item (1):
Jay’s intervention was based on the GNSO Council’s directions when creating the Work Track; i.e., address the issues with the original IGO-INGO Access to Curative Rights PDP’s Recommendation #5 by finding a solution that recognizes IGO immunities and privileges while preserving a registrant’s right and ability to have a UDRP panel decision reviewed on the merits. As requested, here is the summary of the concerns Jay outlined on the call – Jay and others, please let us know if this is not accurate:


  *   Removing the requirement for an IGO Complainant to agree to submit to a Mutual Jurisdiction when filing a UDRP complaint results in a “false choice” for a losing registrant as between going to court and agreeing to arbitration. By removing the Mutual Jurisdiction requirement for IGOs, a registrant is essentially left without a remedy should a court rule that it cannot hear the case due to the IGO’s having immunity from the jurisdiction of that court.
  *   There have been controversial UDRP decisions and cases of reverse domain name hijacking (RDNH) that have resulted in domain names being canceled or transferred away from legitimate, good faith registrants. Registrants rely on the due process protections that a court provides, such as the ability to appeal and other built-in checks and balances, to ensure fairness.
  *   The current Work Track proposal allows an IGO Complainant to select the forum (staff note: presumably, by selecting the UDRP dispute resolution provider to file its case with) and have the proceeding decided by panelist(s) who are almost exclusively trademark practitioners. Requiring the registrant to choose between arbitration and going to court in these circumstances would appear to be the kind of situation that a judge may wish to review (in the absence of the immunity issue).
  *   In the original PDP Working Group, there had been a suggestion that the option to arbitrate remains available after there has been a judicial proceeding in which the court finds that the IGO is jurisdictionally immune. This alternative seems to preserve the ability to obtain a substantive decision on the merits of a registrant’s case, should the immunity question be decided in favor of the IGO Complainant.

On action item (2):
Staff has updated the group’s working document: https://drive.google.com/file/d/1GHfvQzZG8s6BdgUsHm3KoyWtRcPO1EYU/view?usp=sharing. I’m also attaching a Word version in case you are not able to access or view the Google Doc. Since the Google Doc now contains comments and redlined updates from the past two weeks, it may be somewhat difficult to read. For your convenient reference, you will find the additions and edits made by staff as a result of Monday’s call toward the bottom of Page 3 and continuing on Page 4.

Thanks and cheers
Steve, Berry & Mary

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Berry Cobb via gnso-igo-wt <gnso-igo-wt at icann.org>
Reply-To: Berry Cobb <Berry.Cobb at icann.org>
Date: Thursday, July 29, 2021 at 2:07 PM
To: "gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org>
Subject: [gnso-igo-wt] Agenda RPM - IGO Curative Rights Work Track for 2 Aug 2021 15:00 UTC Meeting

Dear RPM - IGO Curative Rights Work Track,

Please see below the proposed agenda for the meeting scheduled on 2 Aug 2021 15:00 UTC.

  *   Roll Call & SOI Updates (5 minutes)
  *   Welcome & Chair updates (Chair) (10 minutes)
  *   Continued Discussion of Working Proposal (70 minutes)
     *   Link to Proposed Recommendations Doc: https://docs.google.com/document/d/1GHfvQzZG8s6BdgUsHm3KoyWtRcPO1EYU/edit (PDF attached)
  *   Next steps & closing (5 minutes)
     *   Next meeting 09 August 2021 @ 15:00 UTC

Action Items:

  *   Brian to add his proposed redlines to the Google doc - COMPLETE - Note, staff created the next version in a new google doc, link provided above. The old version has been closed.
  *   Staff to prepare next draft of working proposal - IN PROGRESS - Staff awaits Brian's action to be completed.
  *   Staff to update flowchart - COMPLETE; Updated chart added to google doc, and also attached here.
  *   Brian to propose edits Rec #2 regarding selection of law for arbitration - IN PROGRESS


Sincerely,

GNSO Policy Staff[Image removed by sender.]
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