October 2018 - council - lists.icann.org

Reminder: GNSO Council closed informal session 18:30 - 20:00 today rm 115
by Nathalie Peregrine Oct. 23, 2018

Oct. 23, 2018

Dear councilors, A reminder that the GNSO Council informal session is scheduled today from 18:30 – 20:00 CET in room 115. GNSO SG & C Chairs have been invited to observe the session as per usual. Venue restrictions imply that we cannot stay any longer than the scheduled end time, so please ensure to turn up on time, or send apologies to GNSO Council leadership and/or the GNSO Secretariat. Thank you all! Nathalie Nathalie Peregrine Manager, Operations Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine(a)icann.org <nathalie.peregrine(a)icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>

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GALA INFORMATION Wednesday 24 October 2018
by Nathalie Peregrine Oct. 23, 2018

Oct. 23, 2018

ICANN63 Gala Hosted by Ministry of Economy and Business and RED.ES Venue : Centre de Convencions Internacional de Barcelona (CCIB) – Area 5-6-7-8 Time : 19:00 – 22:00 Standing gala, food with local tastes, drinks, entertainment Tickets : Gala invitation will be required to attend ICANN63 Gala. The invitations will be available at the host booth ( Booth # 7 ) on Monday, 22 October, Tuesday, 23 October and Wednesday, 24 October. Session Leader: Ministry of Economy and Business and RED.ES Nathalie Peregrine Manager, Operations Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine(a)icann.org <nathalie.peregrine(a)icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>

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GNSO Council Abstention Notification Form [#288]
by ICANN Oct. 23, 2018

Oct. 23, 2018

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GNSO Council Abstention Notification Form [#287]
by ICANN Oct. 23, 2018

Oct. 23, 2018

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Lessons Learned - RDS PDP WG Leadership Team
by Marika Konings Oct. 23, 2018

Oct. 23, 2018

Dear All, Please find attached the Lessons Learned document developed by the RDS PDP WG Leadership Team which was referenced during discussions earlier today. Best regards, Marika Marika Konings Vice President, Policy Development Support – GNSO, Internet Corporation for Assigned Names and Numbers (ICANN) Email: marika.konings(a)icann.org<mailto:marika.konings@icann.org> Follow the GNSO via Twitter @ICANN_GNSO Find out more about the GNSO by taking our interactive courses<https://urldefense.proofpoint.com/v2/url?u=http-3A__learn.icann.org_courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>.

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Fwd: Requested feedback on IGO curative WG report
by Heather Forrest Oct. 22, 2018

Oct. 22, 2018

Dear Council colleagues, Following our meeting with the GAC yesterday, please find below information from Brian Beckham (WIPO) for our consideration in relation to the IGO/INGO Curative Rights PDP Final Report. Best wishes, Heather ---------- Forwarded message --------- From: BECKHAM, Brian <brian.beckham(a)wipo.int> Date: Mon, Oct 22, 2018 at 5:02 PM Subject: Requested feedback on IGO curative WG report To: Heather Forrest <haforrestesq(a)gmail.com> Cc: Jon PASSARO (Jonathan.PASSARO(a)oecd.org) <Jonathan.PASSARO(a)oecd.org>, manal(a)tra.gov.eg <manal(a)tra.gov.eg>, gac-leadership(a)icann.org < gac-leadership(a)icann.org>, Mary Wong <mary.wong(a)icann.org> Dear Heather, dear Councilors, We understand that the Council would like to review some specific concerns from IGOs/the GAC on the IGO Curative WG’s recommendations. Set out below is a high-level reaction to assist you. These high-level comments are an overview only (and drafted very quickly as well), so please do not understand the below as a substitute for the more detailed inputs IGOs and the GAC have provided to the working group over the past several years (and which received only cursory mentions in the report). The words of the resigned co-chair (beginning at page 70 of the Final Report <https://community.icann.org/display/gnsoicrpmpdp/Final+Report?preview=/8998…>) capture many of our concerns: “After four years of effort this WG has utterly failed to provide a policy recommendation that reasonably resolves the central challenge it confronted”. Worse, the final report even provides recommendations outside the scope of the group’s charter: the working group was tasked to determine “whether to amend the UDRP and URS to allow access to and use of these mechanisms by IGOs and INGOs and, if so, in what respects; or whether a separate, narrowly-tailored dispute resolution procedure at the second level modeled on the UDRP and URS that takes into account the particular needs and specific circumstances of IGOs and INGOs should be developed.” Not only has the working group failed to provide any recommendations that would facilitate IGO access to curative rights mechanisms, they have actually passed one recommendation that would *penalise* an IGO that successfully asserts an immunity claim. In short, the working group has not only decided that IGOs’ treaty- and customary international law-based immunities should have no recognition in the ICANN system, but that IGOs should be punished should they successfully assert these immunities before a national court. The resigned co-chair’s minority statement also pointed out the imbalance of the working group members’ votes on the final recommendations: “Of the 11 WG members who supported the Recommendation, a majority (7) were either domain investors or attorneys representing domain investors (domainers), indicating that the WG’s consensus call process had been captured by a narrow segment of the ICANN community with a significant commercial interest in the outcome. In addition, 3 of those 7 members participated in an individual capacity and are unaffiliated with any ICANN stakeholder group or constituency.” This observation captures our concerns over the process that lead to the working group’s final report. Please see below for some specific reaction on the recommendations, as well as a reference to materials IGOs submitted to the working group. Along with my colleague Jon Passaro from the OECD, I am at your disposal to discuss further. Kind regards, and thank you for forwarding this to the Council list, Brian -- *Recommendation 1**:* For IGOs, no specific new dispute resolution procedures are to be created. *Note:* In the Los Angles, Helsinki, Hyderabad, and Johannesburg Communiques, the GAC asked for “a dispute resolution mechanism “modeled on but separate from the existing Uniform Dispute Resolution Policy (UDRP).” *Reaction:* This is a threshold issue. The WG rejecting the GAC’s request for a dispute resolution system modeled on, but separate from, the UDRP, sets the scene for the remaining troubling recommendations that individually and collectively ignore the concerns raised by IGOs and contradict specific GAC advice. *Recommendation 2**:* An IGO may seek to demonstrate that it has the requisite standing to file a complaint under the UDRP or URS by showing that [has recorded its identifier under the Paris Convention], and [ ] must adduce factual evidence to show that it nevertheless has substantive legal [so‑called “unregistered trademark rights”] rights in the name and/or acronym in question. *Note:* The WG’s Initial Report did not include this additional hurdle, but accepted a Paris Convention recordation to support IGO standing to bring a claim. The GAC’s Johannesburg Communique stated that the dispute resolution mechanism should “provide standing based on IGOs’ status as public intergovernmental institutions”. *Reaction:* IGOs note that the working group—tasked with improving IGO access to curative rights mechanisms—found it appropriate to modify its draft recommendations following the public comment period to increase procedural hurdles for IGO access to curative rights mechanisms. Conversely, the working group did not modify any of its conclusions to take into account numerous comments on other recommendations submitted by multiple IGOs and the GAC. As a consequence, it unfairly shifts the burden on to IGOs (who are not commercial actors, and as such do not fall under the same “use in commerce” rubric as is understood under trademark law). *Recommendation 3**:* ICANN shall create and issue Policy Guidance: (a) [“explaining” that IGOs] have the ability [file a] UDRP [through a] licensee; and (b) advising IGOs [ ] prior to filing a UDRP [to] contact the registrar [ ] to address the harms for which they are seeking redress. *Reaction:* As to (a) the working group’s own legal expert acknowledged that the “consequences [of such waivers] are uncertain” and “could themselves be regarded as waivers of immunity” in addition to the risk that the assignment “might be ineffective” (Swaine memo, p 27). The strategy is risky and complicated. As to (b), IGOs are aware of this possibility already, and in fact have done so. *Recommendation 4**:* [Rejected the GAC’s request for ICANN assistance to offset IGO fees to use a rights protection mechanism.] *Note:* While rejecting IGOs’ request for assistance, the WG noted that: “many Working Group members believe that a respondent should also be eligible to receive financial support for its defense.” *Reaction:* It is disappointing to see commercial registration interests not only reject IGOs’ request for assistance – especially noting that IGOs serve the global public interest using public funds but at the same time seek financial assistance for their own commercial causes. *Recommendation 5**:* Where a losing registrant challenges the initial UDRP [ ] decision by filing suit in a national court of mutual jurisdiction and the IGO that succeeded in its initial UDRP [ ] complaint also succeeds in asserting jurisdictional immunity in that court, the decision rendered against the registrant in the predecessor UDRP or URS shall be set aside (i.e. invalidated). *Note:* IGOs tried repeatedly to propose arbitration as a means to resolve UDRP appeals involving an IGO. Arbitration is a common means of resolving commercial contractual disputes. Countless treatises have been written on the topic, and curricula at law schools in common law and civil law jurisdictions around the world offer dedicated courses on arbitration. A recent course description for the arbitration class at a leading Australian university describes commercial arbitration as “possibly the most widely used dispute resolution method in international business.” Numerous major law schools have entire programs dedicated to the study of arbitration. “Godaddy”, which styles itself as the world’s largest domain name registrar, requires domain name registrants to abide by binding arbitration in Article 22 of its Universal Terms of Service (Last revised on 19 October 2018, available at https://www.godaddy.com/agreements/showdoc?pageid=5403) *Reaction:* This recommendation extends beyond the scope of the working group’s mandate and is manifestly disadvantageous to IGOs, ensuring that it is impossible for IGOs to rely upon their immunities from the jurisdiction of national courts as established under international law. We fail to understand how the working group could conclude it was unable to create an alternative curative rights mechanism for IGOs on the grounds that it would deny justice to rights holders while at the same time recommending for the creation of a mechanism that would prevent IGOs from utilizing treaty-based protections granted to them under international law. The only conclusion we can draw is that some registration commercial interests are more worthy of protection than others (governments and their causes) in the eyes of the working group, whose membership was dominated by domainers. -- Also relevant for the Council, note the following (attached): · Letter from UN Secretary General Ban ki Moon · Two reactions by IGOs to the WG, following the WG’s specific request · Two letters from IGO Legal Counsels to ICANN · The GAC’s Submission to the WG’s Initial Report <https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/…> World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.

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CPH Letter to ICANN on UAM and 3rd Party Data Access
by Drazek, Keith Oct. 22, 2018

Oct. 22, 2018

Hi all, FYI, the CPH submitted the attached letter to ICANN today. I'm not sure how long it will take to be posted to the ICANN correspondence page, so sending a copy now. Regards, Keith

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GNSO Council Abstention Notification Form [#286]
by ICANN Oct. 22, 2018

Oct. 22, 2018

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ON NOW: GNSO ccNSO Councils lunch meeting in rm 115
by Nathalie Peregrine Oct. 22, 2018

Oct. 22, 2018

Councilors, Please make your way to room 115 now in order to get lunch in a timely manner in order to not affect the meeting start time. Thank you! Nathalie Nathalie Peregrine Manager, Operations Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine(a)icann.org <nathalie.peregrine(a)icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>

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Re: [council] [gnso-secs] Bill GNSO Drinks and tapas Saturday 20 October 2018
by Nathalie Peregrine Oct. 22, 2018

Oct. 22, 2018

Dear all, Reminder to please remember to log into Keith’s paypal account if you haven’t already done so to cover the 35 euros a head for the GNSO Council drinks and tapas event on Saturday; https://paypal.me/gnsocouncilevent [paypal.me]<https://urldefense.proofpoint.com/v2/url?u=https-3A__paypal.me_gnsocouncile…> Kind regards, Nathalie From: Gnso-secs <gnso-secs-bounces(a)icann.org> on behalf of Nathalie Peregrine <nathalie.peregrine(a)icann.org> Date: Sunday, October 21, 2018 at 8:14 AM To: "council(a)gnso.icann.org" <council(a)gnso.icann.org> Cc: "gnso-secs(a)icann.org" <gnso-secs(a)icann.org> Subject: [gnso-secs] Bill GNSO Drinks and tapas Saturday 20 October 2018 Dear all, Thank you so much for joining the GNSO Council drinks and tapas event last night at Ultramarinos! Please find the group bill attached for your expenses. Please complete payment if you have not already done so: https://paypal.me/gnsocouncilevent [paypal.me]<https://urldefense.proofpoint.com/v2/url?u=https-3A__paypal.me_gnsocouncile…>. Reminder: any cancellation after Wednesday 17th October 2018 will have been billed to Keith, so please log onto Paypal as soon as possible. Thank you! Kind regards, Nathalie Nathalie Peregrine Manager, Operations Support (GNSO) Internet Corporation for Assigned Names and Numbers (ICANN) Email: nathalie.peregrine(a)icann.org <nathalie.peregrine(a)icann.org%20> Skype: nathalie.peregrine.icann Find out more about the GNSO by taking our interactive courses<applewebdata://EB3A6F47-9760-400D-A39B-A7EFFC56B467/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_sites_gn…>

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