November 2017 - Gnso-igo-ingo-crp

Reviving Option #5
by George Kirikos Nov. 18, 2017

Nov. 18, 2017

Hi folks, In yesterday's email to this mailing (below), I used the metaphor of a "software bug". It prompted further analysis of one of the options of a few months ago that had been abandoned as infeasible previously, namely Option #5 from Paul Keating, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000784.html http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000786.html As you'll recall, Paul Keating identified an asymmetric certification requirement under the UDRP rules by the parties. That was a very keen observation. As he suggested, if indeed that asymmetry existed, then a domain name registrant (respondent in a UDRP) could name the ADR provider (WIPO, NAF, etc.) in a court action, because the UDRP certification requirement didn't actually shield the ADR provider properly (unlike the complainant's certification). In my followup emails (the 2 latter links above), I noted that the UDRP providers prevented that scenario, because they "fixed the bugs" so to speak, eliminated that vulnerability, via their own supplemental rules. So, my question is, why should those supplemental rules be permitted at all? Advocates of Option C clearly do not believe that this PDP should actually eliminate bugs in the UDRP (i.e. they oppose Option A, which would eliminate the bug in the policy). If we're not allowed to fix that bug (even though that should be our mission, and the GNSO is the proper policymaking body for ICANN), then why should UDRP providers be allowed to fix bugs that they identify and impact them? It would be hypocritical to apply one standard to certain "bugs" in the UDRP, and a different one to other bugs. ADR providers should be forced to live by the strict application of the UDRP rules as written, warts and all, and not deviate from them by imposing their own supplemental rules that completely fix the problems for themselves. So, WIPO's paragraph #15: http://www.wipo.int/amc/en/domains/supplemental/eudrp/newrules.html "15. Exclusion of Liability Except in respect of deliberate wrongdoing, an Administrative Panel, the World Intellectual Property Organization and the Center shall not be liable to a party, a concerned registrar or ICANN for any act or omission in connection with the administrative proceeding." which they used to fix the "bug" in the UDRP that exposed them to liability from the Respondent of a UDRP should be deemed invalid, and similarly for other UDRP/URS providers. By doing so, this fully revives Option #5, and puts it back on the table. As an aside, WIPO might believe that their immunity as an IGO might still shield them from a lawsuit from a domain name registrant involved in a UDRP, if we required strict adherence to the UDRP rules (and disallow those supplemental rules fixes). However, I believe this would not be the case, because when they're acting as an ADR provider it should fall under the "commercial exception." (the fact that they added the language to the supplemental rules supports that view; if they believed they were fully immune, they wouldn't need to have added it) Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 7:36 PM, George Kirikos <icann(a)leap.com> wrote: > Hi Petter, > > On Fri, Nov 17, 2017 at 6:22 PM, Petter Rindforth > <petter.rindforth(a)fenixlegal.eu> wrote: >> And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced". > > Those are not valid arguments, just to say they're "fair and > balanced", without explanation (with reference to facts and law). > > Let me abstract away from domains and ICANN for a moment. Imagine > we're tasked to look over software for an airplane, a purely > technical/engineering endeavour. In our review, looking at something > else entirely, we come across a critical vulnerability that could > cause the plane to crash under some rare circumstances. What would we > do? Logically, we'd fix the code so that the plane would never crash > under that circumstance, period. > > This is what our job was in this PDP. We were to look at the all the > law, facts around IGOs, immunity and the UDRP, and thoroughly research > the topic. During that review, we discovered there was a "critical > vulnerability" in the UDRP itself. Rather than being an airplane > crash, this vulnerability is that some domain name registrants would > be denied the ability to have their day in court, to have their case > decided on the merits "de novo" (if an IGO successfully asserted an > immunity defense after winning a UDRP). > > That's all it is --- a "software bug" under some scenarios. The > designers of the UDRP hadn't ever contemplated that scenario in 1999. > Because we did such a thorough job in our research, far better than > what happened in 1999, we're in the best position to decide how to fix > the "software bug." > > Option A is a complete technical fix to the "software bug". The domain > name registrant can have their day in court. If the IGO wants to press > the matter, they have to give up the immunity, importantly, ****just > like they would have to do had the current UDRP not created the "bug" > in the first place*****. (re-read that part between the asterisks -- > that is critical) Or the IGO can use one of the workarounds we > identified to completely insulate themselves from the immunity > issue/risk (agent, assignee, licensee brings the action, thereby > shielding the IGO). The IGO is in the best position to mitigate (if we > did the proper Risk Analysis I've called for). The domain owner is in > no position to mitigate. > > So, suppose prior to Option A, the "plane crash" might happen 10 times > in the next 100 years. Under Option A, it happens zero times. The > problem is solved. The solution perfectly mirrors a world without the > UDRP --- both parties are in the exact same legal position as if the > UDRP hadn't happened. A level playing field is maintained, and any > rights that exist in the real world are fully respected under Option > A. No one's rights have been interfered with. > > Now, those backing Option C say "Well, we'll implement a so-called > "fair and balanced" solution that makes the plane crash happen just 5 > times in the next 100 years. "Yippee" they say, we've made an > improvement! Their frame of reference, their "starting point" isn't > "zero crashes" -- their focus was a world *with* the bugs, a world of > "10 crashes per 100 years" as the "status quo". > > Yet, the plane still crashes under Option C, and supposedly we should > be willing to "accept that". Under Option C, it is entirely possible > for an arbitration panel to rule differently than the courts would > have ruled in a dispute. That's undeniable, because they are by > definition different. Option C is a poor facsimile of real court. The > domain name owner is *entitled* to court access, the real thing. No > one has the UDRP or arbitration as an "entitlement" -- it's a bonus > that is entirely supposed to be negated if one goes to court. Going to > court is supposed to "reset things" and have a level playing field > where everything is supposed to be decided under real laws. > > Option B, to continue the story, says "We'll fix the code completely > for existing planes. New planes can get the "fair and balanced > solution" pushed by Option C's partial fix. So, perhaps now, planes > would crash only 2 times in the next 100 years (0 crashes for old > planes, though, and all the crashes on the new planes). Those who fly > on new planes have that choice, if they want to take the risk, they go > into it with eyes wide open. > > Option #6 would have been similar in nature, in that it tries to > reduce the number of plane crashes (by making it harder to get to the > "crash scenario" computer code, kind of filtering the scenarios > somewhat). So, instead of crashing 5 times per 100 years under > existing Option C, it'd be a lower number if Option #6 was integrated > into a new Option C, maybe 3 times per 100 years. > > I hope that helps folks look at things in a different way. Folks like > myself who are convinced Option A is the correct solution cannot > understand why those backing Option C are willing to accept those > "plane crashes" at all! We're not here to play politics and say "well, > we made an improvement, we did the best we could". We're supposed to > be here to analyze all the facts, knowledge, law, and analysis to get > to the correct decision (Option A). > > I leave Option C backers with this question --- do you acknowledge > that under Option C, arbitration panels might make different rulings > than a court would??? Yes or no. > > If the answer is "Yes", explain to us why that should be acceptable to > domain name registrants? > > A domain name registrant, who is entitled to the protection of their > national courts, should not lose the right to that court access, > simply because the UDRP was not coded properly in 1999 and contains > software bugs. It should be our duty to fix the problem, eliminate the > software bugs, rather than knowingly keeping a smaller or different > bug still lurking in that code (a bug that might have further > unintended consequences down the road that we haven't contemplated yet > that others might exploit). > > Notice, I'm asking very simple questions here that cut to the heart of > the issues, yet instead of any answers, some are playing political > games, saying "well, we made a potential small improvement, you should > be happy, that's all you're going to get". > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > P.S. This "immunity" issue isn't the only "software bug" in the UDRP. > As some of you know from our RPM call on Wednesday, I talked about the > other "bug" whereby some courts (e.g. in the UK) are refusing to hear > de novo reviews/appeals of UDRP decisions at all, e.g. see the > Yoyo.email case: > > http://www.bailii.org/ew/cases/EWHC/Ch/2015/3509.html > > "My conclusions on the application to strike out the Claim are: > > 1) adopting the reasoning of Ms Proudman in Patel drives me to hold > that on a proper construction of the UDRP clause 4k does not give rise > to a separate cause of action in favour of the claimant; > > 2) nor does it afford any jurisdiction to this Court to act as an > appeal or review body from the Decision;" > > This is clearly something the UDRP drafters in 1999 never > contemplated, and is a software bug we'll have to deal with in the RPM > PDP, as it strikes at the very bargain that was made when the UDRP was > adopted, namely that it wouldn't interfere with legal rights on access > to the real courts for a decision on the merits. For it to happen in > some jurisdictions wasn't known by those drafting the UDRP. (also > applies equally to URS) > > I'll be writing more about that "software bug" in the RPM PDP's > mailing list probably next week.

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Nature of '89' series at USPTO TM database
by George Kirikos Nov. 17, 2017

Nov. 17, 2017

Hi folks, During today's call, there was some debate as to the nature of the '89' series at the USPTO TM database, that records various Article 6ter notifications. See the chat transcript at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000908.html "Paul Tattersfield:UNHCR has an 89 series class listing at the USPTO and it bars the registration of other TMs in all the international classes George Kirikos:@PaulT: it doesn't "bar" anything. George Kirikos:It's still subject to the limitations of Article 6ter, i.e. if it's not going to cause confusion, other TMs can be registered. Paul Tattersfield:Are you sure George I believe it does in the USPTO" The nice thing about this debate is that one need only find a single clear example, to prove conclusively that the 89-series doesn't bar anything (as I stated). I had a few minutes, so I searched the term "6ter" at the USPTO TM database (all fields) to come up with the list of 89-series listings. Then, I randomly picked an "old" (for reason, see below) and "short" one (to find commonly used terms that others would want to legitimately register as marks), to get my example: CDT: Filed on June 20, 2006, status date = Apr. 25, 2007 Owner: Translation Centre for the Bodies of the European Union http://tsdr.uspto.gov/#caseNumber=89001045&caseType=SERIAL_NO&searchType=st… Does that 89-series listing bar registration by others of "CDT" marks? Nope. Here's one registered to Jay Chang (an individual) for "Electric Fans": http://tsdr.uspto.gov/#caseNumber=86019678&caseType=SERIAL_NO&searchType=st… which is an elegant example, because its "First Use in Commerce" was January 10, 2011 (i.e. years *after* that 89-series listing), it's a standard character mark, etc. i.e. it's just a regular TM with no "special case" exception (i.e. it wasn't dated before the 89-series listing, or just a logo, or whatever). That's why I picked the "old" one, by the way, so it would be easier to quickly find this elegant example that is irrefutable. If you look at the "documents" tab of that page, one can also verify that no special permission was sought or required from the relevant IGO, either. It went through the ordinary process, just like any other application. Q.E.D. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Recordings, attendance & AC Chat from IGO-INGO Curative Rights Protection PDP WG Meeting on Thursday, 16 November 2017
by Michelle DeSmyter Nov. 16, 2017

Nov. 16, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording and chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 16 November 2017 at 17:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-16nov17-en.mp3[mailer.sa… AC Recording: https://participate.icann.org/p409ptax36b/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page:https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Philip Corwin Jay Chapman Imran Ahmed Shah Mason Cole Osvaldo Novoa David Maher Apologies: Paul Keating ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Michelle DeSmyter ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for Thursday, 16 November 2017 Michelle DeSmyter:Dear All, Welcome to the IGO INGO Curative Rights Protection Mechanisms Working Group call on Thursday, 16 November 2017 at 17:00 UTC. Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Michelle DeSmyter:Hi there George George Kirikos:Hi Michelle. brb Michelle DeSmyter:sounds good George Kirikos:I have returned. Michelle DeSmyter:welcome back ;) George Kirikos:Thanks. Is the US Thanksgiving holiday going to impact next week's call? George Kirikos:Perhaps skip next week? Osvaldo Novoa:Hello all George Kirikos:Hi Osvaldo. Mason Cole:Is no one speaking, or is my audio not working? George Kirikos:Wokring now. Mason Cole:Disregard : ) George Kirikos:*working Philip Corwin:There will be no call next week Mary Wong:Next call will be 30 November George Kirikos:The link to Phil's SOI is broken on the IGO member page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… George Kirikos:(it's not broken on the RPM members list page, though) Michelle DeSmyter:Welcome Paul Paul Tattersfield:Sorry I'm late Paul Tattersfield:Thnaks Michelle George Kirikos:2 other SOIs on that page are missing. So, those members should be removed if they don't add one, since an SOI is a "price" to being a member. Mary Wong:Goran (ICANN CEO) and at least two Board members (Becky Burr and Sarah Deutsch) were at the open community session for quite a substantial part of the discussion Steve Chan:It is unsynced Mary Wong:The Board members' and Goran's presence at the session may be particularly helpful given the GAC advice to the Board Mary Wong:The USPTO concern seemed to be that even the modified recommendation still gives the 6ter procedure too much weight. George Kirikos:WIPO's answer was wrong. George Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/00089… Paul Tattersfield:@MAry I was surpirsed at the USPTO's comments that was why I asked about the 89 series listings. I don't really think that registration/listing is really relevant it's more to do with evidencing George Kirikos:Our recommendations wrt Article 6ter don't change anything. George Kirikos:They could already cite Article 6ter, if they want, as "evidence". Doesn't mean the panel needs to accept it. George Kirikos:evidence vs proof, seems like a simple concept that some couldn't grasp. Mary Wong:@Paul T, yes - and John Rodriguez clarified that te 89 series does not indicate TM rights. Philip Corwin:With all respect to the PTO, I don't think we can ignore an international agreement that provides protective rights in trademark systems throughout most nations of the world. All we are doing is clarifying that WIPO notification can be considered as evidence of registered TM rights. Mary Wong:@George K, I believe that is not necessarily a legal distinction so it could be interpreted as an issue of semantics (use of words).. George Kirikos:Nominet is entirely different, though. They don't want court appeals, see: https://urldefense.proofpoint.com/v2/url?u=https-3A__domainnamewire.com_201… George Kirikos:http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/00090… Paul Tattersfield:Mary most people would misunderstand his comments as they wouldn't realise that normal registrations are not really relevant here its the use of the underlying goods and services that give the rights which is exactly the same as with 6ter or as in the US 89 series listings as registration merely evidences the rights Mary Wong:@Paul T, understood - but the basic concern (as I understand it) is that 6ter notification does not imply any substantive rights - it is only a recognition by States that IGO emblems should have special protection as against third party registrations. Mary Wong:@GEorge, didn't the WG spend quite a bit of time deveoping Option C, including consideration of what arbitration might look like? Paul Tattersfield:George is right Paul Tattersfield:hehe George Kirikos:@Mary: not really, and Option #6 didn't get incorporated into it. George Kirikos:Even though it was claimed it was incorporated, by the preface to the options documents. George Kirikos:On what basis was Option #6 removed, other than the Chairs misleadingly claiming it was in Option C? Mary Wong:@George, while Optin 6 was not incorporated wholesale, the basic idea that the court could be asked to determine the question of ownership (i.e. treat a domain as property, as is done in only several jurisdictions to our knowledge) was based on a premise behind Option 6, wasn't it? George Kirikos:@Mary: it wasn't incorporated at all. Paul Tattersfield:It's all very theoretical anyway a b or c will all only occur if the registrant doesn't have a good counsel - What matters is the IGo iniated the UDRP and can not expect to entitled to imunity in any follow on proceedings Philip Corwin:just disconnected my audio. right back Philip Corwin:back on audio Philip Corwin:I have a few comments re GAC George Kirikos:@Mary: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Nowhere does "in rem" vs. "in personam" appear in Option C. George Kirikos:Also, first paragraph of that document falsely claims "essential elemants have been adapted and incorporated". Where? Paul Tattersfield:@Mary sorry for the delay my machine is behaving quite naughtily this thread dealt with the issues http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000779.html Paul Tattersfield:UNHCR has an 89 series class listing at the USPTO and it bars the registration of other TMs in all the international classes George Kirikos:@PaulT: it doesn't "bar" anything. George Kirikos:It's still subject to the limitations of Article 6ter, i.e. if it's not going to cause confusion, other TMs can be registered. Paul Tattersfield:Are you sure George I believe it does in the USPTO Mary Wong:@George, again staff can't speak for the co-chairs, but we recall that an essential difficulty with recommending "in rem" and "in personam" jurisdiction is that it privileges a few jurisdictions over many others. There is jurisdiction in rem and a right in rem - ad a further difficulty that most courts outside the US and Canada have not recognized that domain names are property. Hence, the staff recollection is that the essential idea was favored of having limited court jurisdiction to decide on ownership, rather than engage in this distinction. George Kirikos:@Mary: check the date --- that document removed Option 6 before those discussions. George Kirikos:It was never discussed or voted on re: Option #6, since discussions were ongoing and then a meeting got cancelled. George Kirikos:i.e. the surprise "survey" took the place of a meeting that should have happened, as these options were still being discussed. Philip Corwin:@George -- as I stated orally a few minutes ago, please provide the additional language you would propose to add to the arbitration option and the WG will considfer it George Kirikos:It's not an "arbitration option". George Kirikos:It's an instruction to the Registrar to lock the domain name if the case is brought "in rem", instead of "in personam" George Kirikos:Go look at 4(k) of the UDRP: --- just talks about "competent jurisdiction" https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resource… for "the dispute". Doesn't say "how" it can be brought. Philip Corwin:Whatever George, yopu have an invitation to submit language for WG consideration George Kirikos:But, then it compels it to be "in personam", i.e. "against the complainant", because it didn't contemplate that a domain name owner might want to bring it in rem. Mary Wong:The Nominet "appeal" process essentially requires a panel appointed from amongst an Expert Review Group. Mary Wong:Para 20 describes the process. Paul Tattersfield:Nominet also has a mediation stage before the determination stage - I think we should recommend that should be provded free by the UDRP providers for any IGO names Mary Wong:With 20.7 specifying the Expert Panel. Mary Wong:@Paul T, yes it does George Kirikos:This is not equivalent to a court process. 1000 words, no new evidence. George Kirikos:No discovery, no cross examinations. George Kirikos:It's not de novo. George Kirikos:Federal Court of Canada court rules --- 30 page submissions. In provincial courts, no such limits I'm aware of (and US cases can be hundreds of pages). George Kirikos:First, it's wrong to say "Option A" did not receive "majority consensus". George Kirikos:There's been no consensus call. George Kirikos:It's funny all the disclaimers that were attached before the "informal survey". George Kirikos:But, when the Chairs got their way, they now give it a lot of weight. Paul Tattersfield:that's right Phil see Emirates case George Kirikos:No merit to the Nominet approach. Paul Tattersfield:https://urldefense.proofpoint.com/v2/url?u=https-3A__www.edwin… Mary Wong:@Phil, I believe there are community members who have worked with Nominet or who have been Nominet panelists - e.g. David Taylor (who is on the CCT Review Team). Staff can reach out to him if the WG deems it appropriate. George Kirikos:Right, Paul. That's what I was bringing up on yesterday's RPM call, too, with relation to the UDRP/URS. Philip Corwin:This WG has no Charter authority to recommend an appeals process for UDRP. That can be considered in Phase 2 of the RPM WG efforts George Kirikos:ICANN should not be creating rules that create new rights. Paul Tattersfield:I mentioned it there too I should have posted that article really with hindsight George Kirikos:And if that includes the UDRP/URS, then the problem needs to be solved directly (i.e. Option A). Option C violates those imporant principles. Mason Cole:Have to sign off for another call. So long folks. George Kirikos:You can see how complex Option C is --- it's creating problem after problem in attempting to solve the problem the UDRP creates. Philip Corwin:We have reached the one hour mark. Probably should wrap up soon for today George Kirikos:Calls are 90 minutes, aren't they? Mary Wong:Staff will circle back with Phil and Petter to confirm next steps and agenda for the next call - apologies but Steve and I need to drop for other calls as well. Philip Corwin:@Mary--I am fine with reaching out to David if he wants to provide input Mary Wong:@Phil, will do Mary Wong:OK thanks Petter. We will send a draft to Phil and Petter as co-chairs early next week (minus text on this recommendation), and plan to circulate it to the WG before the 30th, following the co-chairs' review. Mary Wong:And we will contact David Taylor to see if he can provide useful insight on the Nominet process. Mary Wong:Should we schedule 90 minutes for the 30 Nov meeting? Philip Corwin:If you celebrat Thanksgiving, have a happy one Paul Tattersfield:I have another matter I would like the working group to consider what's the best way to raise it? Mary Wong:ok thanks Petter Philip Corwin:yes, 90 minutes on 11/30 Paul Tattersfield:Its too complex to type in here Mary Wong:@Paul T, can you send a note to the mailing list? Paul Tattersfield:Will do Mary Mary Wong:Thanks! Philip Corwin:@Paul--raise on the list George Kirikos:Why not talk orally, Paul? Paul Tattersfield:thanks George Kirikos:i.e. instead of typing. George Kirikos:Bye for now.

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Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
by Paul Keating Nov. 16, 2017

Nov. 16, 2017

All, There is an error in my email below. I wrote NGO when obviously I meant to reference IGOs. Please accept my apologies. Below is a corrected version that I would like to be included in the record in replacement of the original. Unfortunately I have been working on several large projects with clients in N. Amer. that have me working the phone most days from 5pm onwards. I have another call tonight so I will not be able to make it. I remain in favor of the following principals A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the IGO) is waiving any objection to jurisdiction of the mutual jurisdiction. B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity. C. There has been no evidence that IGOs have refrained from filing a UDRP because of their concerns over sovereign immunity. D. IGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor. * Assertions of phishing are merely that assertions. Assertions are not evidence. E. IGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc. * Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the IGO. F. That if the IGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated. I have previously explained my additional rationale for this position, which is summarized here: 1. The UDRP was created as an streamlined administrative action in which: a. Notice and service of process was simplified no confirmation of notice is required. b. Filings are limited by page/word length. c. Evidence is severely limited in both form and quantity d. Assertions are often treated as evidence. e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions. 2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process. 3. IGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add. 4. There is no concrete way to establish what constitutes an IGO. IGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate. 5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy). 6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition. 7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both. 8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name. UDRP Appeals Process. I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants. As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation. I strongly disfavor any appeals process that would be unique to IGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Paul Keating <paul(a)law.es> Date: Thursday, November 16, 2017 at 2:30 PM To: Mary Wong <mary.wong(a)icann.org>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Cc: George Kirikos <george(a)loffs.com> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July > Mary and fellow WG members, > > > Unfortunately I have been working on several large projects with clients in > North America that have me working the phone most daystar 8am conference calls > (which for me being in Barcelona - begin at 5pm onwards. I have another > client call tonight so I will not be able to make the call today. > > > Please make the following known to the group and retain it in the WG records > > > > I remain in favor of the following principals > > A. That by filing a UDRP complaint and agreeing to the ³Mutual > Jurisdiction² the complainant (including the NGO) is waiving any objection to > jurisdiction of the mutual jurisdiction. > > > > B. That by relying upon ³trademark² rights the complainant is by > definition admitting to a commercial activity. > > > C. There has been no evidence that NGOs have refrained from filing a > UDRP because of their concerns over sovereign immunity. > > > > D. NGOs have in the past filed UDRPs evidence that the Mutual > Jurisdiction provisions are not a limiting factor. > > > * Assertions of phishing are merely that assertions. Assertions are not > evidence. > > E. NGOs have alternative means to press their claims in a UDRP (or > other legal) forum e.g. by assignment, etc. > > > > * Phishing and similar conduct can be appropriately prosecuted by law > enforcement on behalf of the NGO. > > F. That if the NGO successfully asserts sovereign immunity in a post > UDRP proceeding, the underlying UDRP decision should be vitiated. > > > I have previously explained my additional rationale for this position, which > is summarized here: > > 1. The UDRP was created as an streamlined administrative action in > which: > > > a. Notice and service of process was simplified no confirmation of notice > is required. > > b. Filings are limited by page/word length. > > c. Evidence is severely limited in both form and quantity > > d. Assertions are often treated as evidence. > > e. There is no ³precedent² value and panelists are neither required nor > inclined to follow relevant judicial decisions. > > > > 2. Section 4(k) was a material part of the bargain to permit a > losing registrant the right to challenge the matter before a real court under > real rules guarantying due process. > > > > 3. NGOs were certainly around at the time. Their input was heard. > The UDRP was nevertheless established with the blessing of WIPO I might add. > > > 4. There is no concrete way to establish what constitutes an NGO. > NGOs come in a variety of shapes, sizes and qualities. Some are expressly not > recognized by nation states. This in turn rises substantial issues of proof- > which in the context of the limited administrative nature of the UDRP is > inappropriate. > > > 5. The UDRP is a contractually created process mandated by ICANN. > All registrants must agree to application of the UDRP (or similar ADR) as a > condition to registration. The UDRP Policy itself is not based upon > recognized jurisprudence and is constantly shifting in meaning and scope as > panelists seek to further streamline the process by largely ignoring the > express language of the Policy. It also obligates the registrant to abide by > an ever-changing landscape of trademarks (e.g. registration and use of a > domain name in PPC followed by a later trademark registration would place the > registrant at risk of losing the domain name because PPC use is rarely > recognized and at least a minority of panelists continue to apply retroactive > standards such as those found in MummyGold and other decisions attempting to > retroactively apply Paragraph 2 to the Policy). > > > > 6. Trademark rights have been proscribed to a ³standing² > requirement that presents no meaningful condition. > > > 7. The requirement that the trademark be ³identical or confusingly > similar² to the asserted trademark has been proscribed such that the condition > is met whenever the trademark appears (in whole or significant part) in the > domain name. Thus, for example, the rule supports finding that the domain > name ³the.com² is confusingly similar to a trademark for ³Theatre² because the > letter sequence ³the² appears in both. > > > 8. Panelists rarely apply trademark analysis to the registrant¹s > use of the domain name. > > > UDRP Appeals Process. > > I have forwarded a prior email to Mr. Beckman and the WG on the subject of a > UDRP appeal process organized and managed in a manner similar to the DRS > process at Nominet. This is not a change of position as I favor an appeals > process for all UDRP participants. > > As I stated in my communications, such an appeals process is not a replacement > of Section 4(k) or the mutual jurisdiction certification. Instead it should be > an economical means of correcting poorly reasoned decisions by inexperienced > or biased panelists economical in that it limits those situations in which > the parties must spend tens of thousands of dollars in litigation. > > I strongly disfavor any appeals process that would be unique to NGOs or that > would remove the protections of Section 4(k) or the mutual jurisdictional > certification.

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Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
by Paul Keating Nov. 16, 2017

Nov. 16, 2017

Mary and fellow WG members, Unfortunately I have been working on several large projects with clients in North America that have me working the phone most daystar 8am conference calls (which for me being in Barcelona - begin at 5pm onwards. I have another client call tonight so I will not be able to make the call today. Please make the following known to the group and retain it in the WG records I remain in favor of the following principals A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the NGO) is waiving any objection to jurisdiction of the mutual jurisdiction. B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity. C. There has been no evidence that NGOs have refrained from filing a UDRP because of their concerns over sovereign immunity. D. NGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor. * Assertions of phishing are merely that assertions. Assertions are not evidence. E. NGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc. * Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the NGO. F. That if the NGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated. I have previously explained my additional rationale for this position, which is summarized here: 1. The UDRP was created as an streamlined administrative action in which: a. Notice and service of process was simplified no confirmation of notice is required. b. Filings are limited by page/word length. c. Evidence is severely limited in both form and quantity d. Assertions are often treated as evidence. e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions. 2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process. 3. NGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add. 4. There is no concrete way to establish what constitutes an NGO. NGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate. 5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy). 6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition. 7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both. 8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name. UDRP Appeals Process. I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants. As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation. I strongly disfavor any appeals process that would be unique to NGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.

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Proposed agenda for upcoming Working Group call on Thursday 16 November
by Mary Wong Nov. 14, 2017

Nov. 14, 2017

Dear all, Here is the proposed agenda for our next call, scheduled for this Thursday 16 November at 1700 UTC: 1. Roll call/updates to SOI 2. Review feedback from open community session at ICANN60, and GAC Communique 3. Discuss possible relevance of the Nominet appeal process 4. Next steps – process for determining final consensus call and timeline For Agenda Item #2, please review the transcript and/or recording of the ICANN60 session here: https://schedule.icann.org/event/CbFM/gnso-igo-ingo-curative-rights-protect…; as well as the GAC Communique from Abu Dhabi here: https://gac.icann.org/advice/communiques/public/gac-60-abu-dhabi-communique… (the section relevant to IGO protections is under Section VII, on pages 9-10). For Agenda Item #3, please refer to the links in the message below, with particular reference to Paragraph 20 of the Nominet Dispute Resolution Policy (staff is attempting to find more specific background/information on the appeals process referenced by Paul Keating). Finally, in terms of a timeline to completion, the co-chairs and staff are proposing the following steps: * Staff will aim to complete a draft Final Report for circulation by 24 November – to allow everyone a week to review the changes that were made from the Initial Report * The draft can be discussed on the next scheduled call after the one being held this week – this will be 30 November (since 23 November is the Thanksgiving holiday in the USA) * The Working Group may take 2-3 meetings to review the updated language of the draft, especially focusing on the text of the proposed final recommendations. The formal Consensus Call for all proposed final recommendations can be launched in mid-December or at the latest before Christmas, closing in early January 2018. * The Final Report to the GNSO Council can be submitted by end-January 2018. Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Friday, November 10, 2017 at 01:41 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: FW: IGO "appeals" in ICANN CRP WG Dear all, Please find below an email from Paul Keating (forwarded to this mailing list with his permission), concerning the possibility that the appeals process deployed by Nominet may be helpfully considered by the Working Group in relation to Options A-C. You may recall that Paul’s suggestion was brought up during the group’s open community session at ICANN60, so we are providing his full email for further context. In addition, you may wish to review the following links: * Nominet FAQ on its dispute resolution process: https://www.nominet.uk/domains/resolving-uk-domain-disputes-and-complaints/ * Paragraph 20 of the Policy: https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2017/10/… * Paragraph 18 of the Procedure: https://nominet-prod.s3.amazonaws.com/wp-content/uploads/2015/11/DRS_Proced… Staff is attempting to locate more specific details and provisions for the Nominet appeals procedure, and we will forward that information if we are able to find it. Thanks and cheers Mary From: Paul Keating <paul(a)law.es<mailto:paul@law.es>> Date: Wednesday, November 1, 2017 at 22:18 To: "Beckham, Brian" <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>> Cc: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "petter.rindforth(a)fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth(a)fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>>, Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Subject: [Ext] Re: IGO "appeals" in ICANN CRP WG Brian, I will not make the call most likely but please share this with the group publicly. As i said, my first position is that should an IGO successfully move to dismiss a post-UDRP action based upon SI, the underlying UDRP should be vitiated. My distant second position is a post UDRP Nominet-like appeals process. The appeals panelists should be carefully selected and I would require specific training and a more “law” based process that avoids the watered down analysis now prevalent in the UDRP, PARTICULARLY when it comes to the 1st element which would require a more traditional trademark infringement test honoring the actual language of the Policy. Btw, I had suggested an alternative based upon my perception that IGOs concern was mainly to do with possible monetary judgments. The suggestion was to prohibit a SI claim if the respondent in turn waived any claim to monetary damages. This would be a small price to pay as most such judgments are virtually uncollectible at any rate. This was not adopted largely because it would work only if the IGO signed a separate waiver as a part of the UDRP process - an unlikely prospect. I hope you are enjoying AD. Be well, Paul Keating Sent from my iPad On 1 Nov 2017, at 11:35, Beckham, Brian <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Paul, Picking up on your comment at the WIPO Workshop last week, we mentioned to IGO WG co-chairs Phil and Petter, your comment about (and if I understood, receptiveness to) the possibility of a "Nominet-like" appeals avenue for IGOs in a curative ("UDRP-like") dispute resolution mechanism. We (WIPO) are in a separate conflicting meeting today, but on the suggestion of the WG co-chairs, wonder if you might see fit to raise your comment/question in today's IGO WG session? I am also including the co-chairs and ICANN staff on this email in case they would see fit to forward this email to the WG. (Of course, as I stated, most recently at the IGO WG session in Johannesburg, this specific "appeals avenue" would not eclipse court options generally.) Best regards, Brian

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FW: IGO "appeals" in ICANN CRP WG
by Mary Wong Nov. 9, 2017

Nov. 9, 2017

Dear all, Please find below an email from Paul Keating (forwarded to this mailing list with his permission), concerning the possibility that the appeals process deployed by Nominet may be helpfully considered by the Working Group in relation to Options A-C. You may recall that Paul’s suggestion was brought up during the group’s open community session at ICANN60, so we are providing his full email for further context. In addition, you may wish to review the following links: * Nominet FAQ on its dispute resolution process: https://www.nominet.uk/domains/resolving-uk-domain-disputes-and-complaints/ * Paragraph 20 of the Policy: https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2017/10/… * Paragraph 18 of the Procedure: https://nominet-prod.s3.amazonaws.com/wp-content/uploads/2015/11/DRS_Proced… Staff is attempting to locate more specific details and provisions for the Nominet appeals procedure, and we will forward that information if we are able to find it. Thanks and cheers Mary From: Paul Keating <paul(a)law.es<mailto:paul@law.es>> Date: Wednesday, November 1, 2017 at 22:18 To: "Beckham, Brian" <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>> Cc: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>>, "petter.rindforth(a)fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>" <petter.rindforth(a)fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>>, Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Subject: [Ext] Re: IGO "appeals" in ICANN CRP WG Brian, I will not make the call most likely but please share this with the group publicly. As i said, my first position is that should an IGO successfully move to dismiss a post-UDRP action based upon SI, the underlying UDRP should be vitiated. My distant second position is a post UDRP Nominet-like appeals process. The appeals panelists should be carefully selected and I would require specific training and a more “law” based process that avoids the watered down analysis now prevalent in the UDRP, PARTICULARLY when it comes to the 1st element which would require a more traditional trademark infringement test honoring the actual language of the Policy. Btw, I had suggested an alternative based upon my perception that IGOs concern was mainly to do with possible monetary judgments. The suggestion was to prohibit a SI claim if the respondent in turn waived any claim to monetary damages. This would be a small price to pay as most such judgments are virtually uncollectible at any rate. This was not adopted largely because it would work only if the IGO signed a separate waiver as a part of the UDRP process - an unlikely prospect. I hope you are enjoying AD. Be well, Paul Keating Sent from my iPad On 1 Nov 2017, at 11:35, Beckham, Brian <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>> wrote: Hi Paul, Picking up on your comment at the WIPO Workshop last week, we mentioned to IGO WG co-chairs Phil and Petter, your comment about (and if I understood, receptiveness to) the possibility of a "Nominet-like" appeals avenue for IGOs in a curative ("UDRP-like") dispute resolution mechanism. We (WIPO) are in a separate conflicting meeting today, but on the suggestion of the WG co-chairs, wonder if you might see fit to raise your comment/question in today's IGO WG session? I am also including the co-chairs and ICANN staff on this email in case they would see fit to forward this email to the WG. (Of course, as I stated, most recently at the IGO WG session in Johannesburg, this specific "appeals avenue" would not eclipse court options generally.) Best regards, Brian

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Change in Status
by Phil Corwin Nov. 6, 2017

Nov. 6, 2017

Dear WG Members: I have today, November 6, 2017, terminated all operations of the Virtualaw LLC consultancy and commenced employment in the legal department of Verisign, Inc. in the position of Policy Counsel. I intend to continue in my co-chair position, and will update my SOI prior to our next call. With best regards, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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GAC advice on IGO protections
by Mary Wong Nov. 2, 2017

Nov. 2, 2017

Dear Working Group members, The GAC Communique from ICANN60 has just been published, and includes the following advice on IGO protections: “The GAC recalls its longstanding advice on the topic of IGO protections and is closely monitoring the ongoing PDP on IGO-INGO Access to Curative Rights Protection Mechanisms. The GAC remains open to working with the GNSO to try to find a mutually-agreeable resolution to this issue. The GAC also recalls the values of openness, transparency and inclusion, and representativeness and process integrity, that are respectively enshrined in ICANN’s Bylaws and GNSO Operating Procedures. a. The GAC advises the ICANN Board to: i. review closely the decisions on this issue in order to ensure that they are compatible with these values and reflect the full factual record. RATIONALE Although the ICANN Community is still awaiting the final report for the PDP on IGO-INGO Access to Curative Rights Protection Mechanisms, preliminary communications indicate that the Working Group’s proposal will conflict with GAC advice on the issue and GAC input to the PDP as well as the comments of over 20 IGOs who submitted comments to the Working Group’s draft report. The Board plays an important role in ensuring the proper application of the ICANN Bylaws and GNSO Operating Procedures, and the GAC expects that a basic safeguard would be a close Board review of GNSO policy recommendations, especially where such recommendations directly contradict GAC advice.” The full Communique can be viewed here: https://gacweb.icann.org/download/attachments/27132037/GAC%20ICANN60%20Comm… Thanks and cheers Mary

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Number of IGO cases brought under the UDRP
by George Kirikos Nov. 1, 2017

Nov. 1, 2017

Hi folks, During today's call, there was some question about the number of UDRPs brought by IGOs historically. I stated it was "less than a dozen over the past 20 years" in the chat, but Brian Beckham of WIPO asserted it was just 2. The long Footnote 5 at the bottom of page 79 of our initial report: https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf which continues at the bottom of page 80, identified more than 2 cases, and less than a dozen: "Respectively, in International Mobile Satellite Organisation and Inmarsat Ventures Limited (formerly known as Inmarsat Holdings Limited) v. Domains, EntreDomains Inc. and Brian Evans, D2000-1339 (WIPO Nov. 30, 2000); International Bank For Reconstruction and Development d/b/a The World Bank v. Yoo Jin Sohn, D2002-0222 (WIPO May 7, 2002); and Bank for International Settlements v. BFIS, D2003-0984 (WIPO March 1, 2004), Bank for International Settlements v. BIS, D2003-0986 (WIPO March 2, 2004), Bank for International Settlements v. James Elliott, D2003-0987 (WIPO March 3, 2004), Bank for International Settlements v. G.I Joe, D2004-0570 (WIPO (Sept. 27, 2004), Bank for International Settlements v. BIS, D2004-0571 (WIPO Oct. 1, 2004), and Bank for International Settlements v. Fortune Nwaiwu, D2004-0575 (WIPO Oct. 1, 2004). A few other matters are catalogued in the Index of WIPO UDRP Panel Decisions, http://www.wipo.int/amc/en/domains/search/legalindex/, as involving IGOs. In one, involving the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a decentralized agency of the European Union, the complaint was denied due to its failure to establish rights to marks or services. European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) v. Virtual Clicks / Registrant ID:CR36884430, Registration Private Domains by Proxy, Inc., D2010-0475 (WIPO July 7, 2010). In another, involving UNITAID, an IGO hosted by the World Health Organization (WHO), trademark rights were assigned by a fiduciary agreement to a private enterprise, which registered them on behalf of the WHO and UNITAID. Lenz & Staehelin Ltd v. Christopher Mikkelsen, D2012-1922 (WIPO Jan. 8, 2013)." As has been the case before during this PDP, the WIPO representative doesn't have his facts straight. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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