[gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

Michael Graham (ELCA) migraham at expedia.com
Wed Jun 13 15:14:13 UTC 2018


Thank you for these comments, Phil.  We cannot allow the important work of this PDP to be further delayed or derailed by apparently personal prejudices or gripes.  While every member of this PDP has the right and obligation to speak up regarding matters of concern to the PDP, once stated unless supported by others in the PDP we need to move on to the policy issues most of our members have volunteered to address in a serious, deliberative way.  We have all sacrificed significant time and effort in support of our Charter, such irrational and unsupported detours simply must stop.

Michael R. Graham

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Corwin, Philip via gnso-rpm-wg
Sent: Thursday, June 07, 2018 12:28 PM
To: Phil at Winterfeldt.law; ghn at kilpatricktownsend.com; icann at leap.com
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

I am quite concerned that this WG has again been diverted into an extended and divisive dialogue that is far removed from the policy issues we are required to address by our Charter. The only possible connection of the initiating incident to our work would be consideration, likely in phase 2 of our activities, of whether ICANN or another organization should attempt to compile and publicly display results of all follow-up litigation to UDRP and URS decisions that it is aware of. But the email that sparked the dialogue was not about policy proposals but about unsupported accusations of retaliation against the sender.

Mr. Kirikos has identified one fact – that a court case filed after a UDRP decision involving the pupa.com domain had been removed from a WIPO webpage – and has extrapolated that into a charge that this action is evidence of  “direct retaliation by WIPO for my lack of support of Brian Beckham's candidacy for co-chair in this PDP”. Speaking only for myself, and recalling the adage that correlation is not causation, I am not inclined to leap to the conclusion that WIPO took this action as a retaliatory measure absent direct evidence of such motivation. Further, while the publication of court actions taken in the wake of UDRP decisions may have worthwhile accountability and transparency benefits – a subject that this WG can consider at the proper time – I personally question whether this “retaliation” has resulted in any harm to Mr. Kirikos and his company.

I am most concerned by the accuser’s further extrapolation that the removal of the pupa.com case “calls into question the entire legitimacy of future policy choices by this working group, if members of this PDP perceive that they could face retaliation too. The chilling effect of this action by WIPO is obvious.” (Emphasis added) I apologize that it is not at all obvious to me what retaliation members might credibly face from WIPO if they support policy recommendations with which it has an official disagreement. As very few members of this WG have ever filed a judicial appeal of a UDRP decision that might be removed from a WIPO landing page, can this be a serious suggestion that WIPO would seek to sway UDRP panelists to be biased against any such WG member who had a UDRP adjudicated by WIPO, and that the panelist would follow that illicit suggestion?

Brian Beckham participated in his first co-chair planning call, along with Kathy and me, this past Friday, in which we jointly and collegially agreed upon the work plan for this WG up to and through ICANN 62, and that plan was distributed to WG members on Tuesday. All three of us are mindful that it is the role of the co-chairs to administer the WG in a fair and efficient manner that permits its members to decide policy recommendations.

Our work plan for this month is quite heavy and will lay the groundwork for serious and informed discussion of URS policy options this summer, and then for remaining issues in the fall. Yesterday and today members of the Data Sub-team held nearly four hours of discussion with the Analysis Group to set in final form the survey questions that will be dispatched shortly to provide us with additional data to guide our policy decisions.  It is through such tedious but necessary sessions that our work is being advanced, through hard work and cooperation. I would suggest we direct our energies toward such  constructive efforts and not  get sidetracked.

Best to all,
Philip



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

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Phillip Marano
Sent: Thursday, June 07, 2018 2:25 PM
To: 'Nahitchevansky, Georges' <ghn at kilpatricktownsend.com<mailto:ghn at kilpatricktownsend.com>>; George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Cc: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: [EXTERNAL] Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

I fail to see how any of these ad hominem allegations are actually relevant to the current substantive focus of this WG.

If folks have grievances with particular individuals, then they should pursue the proper channels for complaints (we’ve already filed at least one and will likely now file yet another), rather than engage in numerous disruptive and distracting emails to the entire WG.

Sincerely,

Phil

________________________________
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Phillip V. Marano
Senior Associate
Winterfeldt IP Group
1200 17<x-apple-data-detectors://12/1>th<x-apple-data-detectors://12/1> St NW<x-apple-data-detectors://12/1>, Ste 501<x-apple-data-detectors://12/1>
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From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Nahitchevansky, Georges
Sent: Thursday, June 7, 2018 2:14 PM
To: George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Cc: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

As you would say, nice try George.  The cases are vastly different.  Your case has no significance.  It is simply a default judgment and from what I can tell does not look to have had anywhere near the evidence submitted and arguments made as what was involved in Parvi.  Personally I did not say Parvi belongs on the WIPO page.  However, I can understand why that case would be on the page given that it touched on an issue and did something that no other court had done up to then.  Your case has none of that and is simply a garden variety, run of the mill default.  There is nothing that warrants it being on a page that concerns meaningful decisions.  There are hundreds of other cases that involve defaults that are similarly situated to your case and are not that meaningful.  Like I said, if you want to have a page that lists every domain name related lawsuit ever, then get ICANN to create such a page or, alternatively, hire some research assistants and put together a list of the hundreds of lawsuits out there and get it posted on ICANN or some other venue.


From: George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Sent: Thursday, June 7, 2018 1:54 PM
To: Nahitchevansky, Georges <ghn at kilpatricktownsend.com<mailto:ghn at kilpatricktownsend.com>>
Cc: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?

Georges:
My company's court case also had an actual oral hearing before the judge:

http://www.loffs.com//pupa/Pupa-Order-March-11-2013.pdf<http://www.loffs.com/pupa/Pupa-Order-March-11-2013.pdf>
"and on hearing the submissions of counsel"
I know, because I have the legal bills for my law firm's attendance at court. My case also had an award of costs (there are no statutory damages for a case of this type in my jurisdiction).
Why don't you take a look at the the judgment of the Parvi.org case that you stated belongs on that page:

http://www.wipo.int/export/sites/www/amc/en/docs/parvi-order.pdf
and contrast it with the judgment for the Pupa.com case above. I'm glad that you agree with me that Parvi.org has significance (and belongs on that page). So does the Pupa.com case.

Sincerely,

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


On Thu, Jun 7, 2018 at 1:38 PM, Nahitchevansky, Georges <ghn at kilpatricktownsend.com<mailto:ghn at kilpatricktownsend.com>> wrote:
George K

Parvi.org is a very very different case from your case.  There was an actual hearing in that case with evidence presented, arguments made etc.  The case has significance because it was, as far as I know, the first case where a court awarded statutory damages to the domain owner for what the court found to be reverse domain name hijacking.  Ask Paul K and John B to explain this to you.  Your case had none of that and has had no significance anywhere near Parvi.org. It is like hundreds of other cases involving a run of the mill default. Again the WIPO page is meant to provide meaningful cases.

From: icann at leap.com<mailto:icann at leap.com>
Sent: June 7, 2018 12:29 PM
To: ghn at kilpatricktownsend.com<mailto:ghn at kilpatricktownsend.com>
Cc: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?


Georges:

Nice try, but Parvi.org<http://Parvi.org> is a default judgment, but is included, and is
even explicitly labelled as such!

http://www.wipo.int/amc/en/domains/challenged/

This was petty retaliation by WIPO, plain and simple. I'm sure you
scored some points with them coming to their aid. Are folks too scared
to speak out on my side, because they fear similar retaliation against
them?

Sincerely,

George Kirikos
416-588-0269<tel:4165880269>
http://www.leap.com/






On Thu, Jun 7, 2018 at 12:23 PM, Nahitchevansky, Georges
<ghn at kilpatricktownsend.com<mailto:ghn at kilpatricktownsend.com>> wrote:
> George K
>
> I think this is getting way into weeds, too personal and not productive.  In your Pupa.com<http://Pupa.com> case, you filed a lawsuit in Ontario after the UDRP was filed.  The defendant (who had filed the UDRP) apparently did not make an appearance in the lawsuit you filed.  Your attorneys then filed for a default judgment that was granted -- particularly because nobody contested the matter.  This is hardly a fully litigated case where a judge has submissions from both parties and then rules on the merits.  I believe the idea behind the WIPO page is to have cases that were litigated by the parties (who both appeared) and where the court issued a decision.  Just so you know, there are dozens of cases where parties have filed lawsuits against a party who registered a domain name and/or who won a UDRP that resulted in defaults.  In my mind, those cases are not the type case that typically brings any real learning as to whether there has been a bad faith use or registration of a domain name.  Like settlements, which often involve business decisions, sometimes parties default in lawsuits -- particularly, where, as in your case the costs could be high and the domain name may ultimately not be worth the effort.  There are many entities that may make the business decision that since they have no connection to the forum (e.g., they do no business in the country in question and have no presence there), they don't want to spend the money and thus simply default.  So, in my view, I would not read your case as being particularly meaningful as to the merits as there was no real litigation with briefs and evidence submitted by both sides. So while you might want your case highlighted for personal reasons, I don't really think it belongs on the page if the page is meant to dedicated to fully litigated cases where the parties both appeared and then resulted in a court decision (e.g. Barcelona.com<http://Barcelona.com>).
>
>
>
> -----Original Message-----
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>> On Behalf Of George Kirikos
> Sent: Thursday, June 7, 2018 11:55 AM
> To: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
> Subject: [gnso-rpm-wg] WIPO retaliation -- danger for RPM PDP participants?
>
> Hi folks,
>
> I draw folks' attention to the page at:
>
> http://www.wipo.int/amc/en/domains/challenged/
>
> which had been a topic of discussion on this mailing list before. I was shocked to see that it has recently been edited to remove one additional case, namely the court case involving my own company (Leap of Faith Financial Services Inc.), defending the Pupa.com<http://Pupa.com> domain name.
> Attached are 2 PDFs, one generated today (June 7, 2018) and one generated a month ago (May 4, 2018). The Pupa.com<http://Pupa.com> case is the 2nd case in the May 4, 2018 PDF, but has been erased from the version from today.
>
> No other changes were made.
>
> I perceive this as direct retaliation by WIPO for my lack of support of Brian Beckham's candidacy for co-chair in this PDP. There can be no other reasonable explanation, given the timing of this removal.
>
> This retaliation by WIPO also says to members of this PDP that if they disagree with a position taken by WIPO, that there could be consequences, just as has happened here to my company. That is very dangerous.
>
> This petty action by WIPO reinforces my previously-stated opposition to Brian Beckham's candidacy as co-chair of this PDP, where I raised the issue of non-neutrality. It calls into question the entire legitimacy of future policy choices by this working group, if members of this PDP perceive that they could face retaliation too. The chilling effect of this action by WIPO is obvious.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269<tel:4165880269>
> http://www.leap.com/
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