December 2017 - Gnso-igo-ingo-crp

Limited Waiver of Immunity found in Windcreek.com dispute
by George Kirikos Dec. 7, 2017

Dec. 7, 2017

Hi folks, DomainNameWire.com had a story today that's of interest to our work: https://domainnamewire.com/2017/12/07/parties-agree-overturn-udrp-decision-… "This case was more interesting than your typical lawsuit resulting from a UDRP. Poarch Band of Creek Indians claimed tribal sovereign immunity when the lawsuit was filed. However, VirtualPoint argued that the tribe had waived its immunity by filing the UDRP. The court agreed that tribe waived its rights but only as to a challenge to the National Arbitration Forum’s decision to transfer ownership of the domain name." While it involved tribal immunity, I think the results might apply equally to IGO immunity. I attached a few PDFs from the PACER docket that discuss the immunity issue in some sections. The 2nd PDF is chronologically earlier.. Of course, this is a US court case, and other courts might make a different determination. The IGO "small group" seems to have gone fairly silent on their mailing list, but I wonder if this is "acceptable" to IGOs, i.e. the "limited waiver" determination? Although, their staunchest members might continue to hold out for "absolute immunity". Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Topics for discussion on Working Group call today
by Mary Wong Dec. 7, 2017

Dec. 7, 2017

Dear all, As a reminder, please note that for the Working Group call that is coming up in a few hours, the co-chairs plan to focus on discussing a possible Recommendation 3 and finalizing a possible approach to the various Options that have been under discussion. To that end, staff is re-circulating the pre-ICANN60 preliminary poll results so that members may review the specific language for Options A-C. In addition, there were also follow-up discussions on this mailing list in respect of resubmission by George Kirikos of what was called “Option 6” – you can find these email threads here: * http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000944.html and * http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000957.html Staff has in the meantime updated the draft excerpts document that was discussed on the call last week, concerning language for Recommendations 1, 2 and 4. We will circulate the update separately for members to ensure that our updates accurately capture what was discussed and agreed. Thanks and cheers Mary Thanks and cheers Mary

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Option #6 reminder
by George Kirikos Dec. 6, 2017

Dec. 6, 2017

At the last call, I was asked to resubmit Option #6 for discussion. One can read the original proposal at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html Conceptually, it's very simple. While other options consider what to do if one gets into the "special situation" we've discussed at length, this option is different because it would reduce the number of those special situations, by attempting to avoid the special situation entirely. The domain name owner mitigates the problem by suing "in rem" against the domain name itself, where the IGO isn't a named defendant and thus can't assert immunity at all. Option #6 simply modifies 4(k) of the policy, which currently requires that the registrar should lock the domain name if a case is brought against the UDRP complainant (i.e. "in personam"), to lock the domain name if any case is brought concerning the domain name dispute (in rem or in personam). The only effect of Option #6 is to require the locking in that situation (in rem suit) --- a domain name owner could already sue in rem if they wanted to, but it's uncertain whether or not a registrar would lock the domain name if they did so. Option #6 removes that uncertainty. This would actually be consistent with the first part of 4(k), which didn't specify that the case needed to be brought against the complainant, i.e it only said: "The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded." It was only later on that the language (sloppily, in my opinion) required it to be "in personam", not contemplating that one might submit the dispute to a court of competent jurisdiction in another manner. Section 18 of the UDRP "Rules" at: https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en actually contemplate any type of dispute (could be in personam, could be in rem), using the phrase "any legal proceedings....in respect of a domain-name dispute". Thus, Option #6 is entirely consistent with the spirit and intent of the UDRP rules, and simply fixes language that was overly restrictive due to oversight by the drafters of the policy. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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