[gnso-igo-wt] Following up on action items from the IGO Work Track's 2 August call
Jay Chapman
jay at digimedia.com
Thu Aug 5 21:16:07 UTC 2021
Thank you, Mary and Staff, and hello, everyone.
I appreciate the opportunity. For clarity and focus, I narrowed the bullet
points to the following:
- Following the UDRP of a winning IGO Complainant, the current proposal
- that a losing Respondent must choose between going to court or agreeing
to arbitration - is not a fair choice. This is why: Per the current
proposal, should the Respondent choose to go to court, and the court
dismisses the case on non-substantive (i.e., jurisdictional) grounds, the
current proposal would bar the Respondent from accessing and utilizing the
arbitration mechanism to seek substantive, merit-based relief. This is
especially impactful to Respondents when considering the corresponding
proposal to remove the Mutual Jurisdiction Requirement for IGOs. Such a
configuration would seem to unfairly coerce losing Respondents to “choose"
arbitration, otherwise risking that the Respondent could be left without a
remedy.
- While the UDRP has been and is successful in thwarting bad actors,
there have been and are controversial UDRP decisions that have resulted in
domain names being canceled or transferred away from legitimate, good faith
Respondents (businesses, organizations, as well as individuals). These
legitimate, good faith Respondents have and do 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.
- In the original IGO/INGO PDP Working Group, there had been a proposal
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 preserves the ability to obtain a
substantive decision on the merits of a Respondent's case, should the
immunity question be decided in favor of the IGO Complainant. This
proposal does not alter the opportunity for the parties to agree to go
straight to arbitration, nor does it affect the ability of a Respondent who
has no cause of action in their (or their registrar's) jurisdiction from
choosing to go straight to arbitration.
Again, thank you.
Sincerely,
Jay Chapman
On Thu, Aug 5, 2021 at 1:58 PM Mary Wong via gnso-igo-wt <
gnso-igo-wt at icann.org> wrote:
> 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: Image removed by sender.]
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