December 2017 - Gnso-igo-ingo-crp

REMINDER: Call TODAY with David Taylor and Nominet legal counsel
by Mary Wong Dec. 12, 2017

Dec. 12, 2017

Hello all, Just a reminder that (in addition to the regular Working Group call this Thursday), a special call has been scheduled for today, Tuesday 12 December, at 1800 UTC with David Taylor and Nick Wenban-Smith, to discuss the Nominet appeal process. Please see the email below for dial-in and Adobe Connect information. Cheers Mary From: Ntfy-gnso-igo-ingo-crp <ntfy-gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Julie Bisland <julie.bisland(a)icann.org> Date: Monday, December 11, 2017 at 14:16 To: "Ntfy-gnso-igo-ingo-crp(a)icann.org" <Ntfy-gnso-igo-ingo-crp(a)icann.org> Cc: "gnso-secs(a)icann.org" <gnso-secs(a)icann.org> Subject: [Ntfy-gnso-igo-ingo-crp] Meeting Invitation: IGO-INGO Access to Curative Rights Protection Mechanisms call with guests on Tuesday, 12 December 2017 at 18:00 UTC Dear all, The IGO-INGO Access to Curative Rights Protection Mechanisms meeting between interested Working Group members and David Taylor (a partner at the Hogan Lovells law firm, who is a Nominent panelist and veteran ICANN community participant) as well as Nick Wenban-Smith (Nominet’s legal counsel) will take place on Tuesday, 12 December 2017 at 18:00 UTC for 60 minutes. 10:00 PST, 13:00 EST, 18:00 London GMT, 19:00 Paris CET For other times: https://tinyurl.com/y86y87y8[tinyurl.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__tinyurl.com_y86y87y8&d…> Adobe Connect WITH AUDIO enabled:https://participate.icann.org/crp For those of you using the Adobe Connect audio, you may do so by activating your computer microphone via the Adobe room (Using a headset is preferable here). Please confirm your dial-out requests and apologies to GNSO Secretariats at gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> ______________________________________________________________________ Participant passcode: IGO Dial in numbers: Country Toll Numbers Freephone/ Toll Free Number ARGENTINA 0800-777-0519 AUSTRALIA ADELAIDE: 61-8-8121-4842 1-800-657-260 AUSTRALIA BRISBANE: 61-7-3102-0944 1-800-657-260 AUSTRALIA CANBERRA: 61-2-6100-1944 1-800-657-260 AUSTRALIA MELBOURNE: 61-3-9010-7713 1-800-657-260 AUSTRALIA PERTH: 61-8-9467-5223 1-800-657-260 AUSTRALIA SYDNEY: 61-2-8205-8129 1-800-657-260 AUSTRIA 43-1-92-81-113 0800-005-259 BELGIUM 32-2-400-9861 0800-3-8795 BRAZIL RIO DE JANEIRO: 55-21-40421490 0800-7610651 BRAZIL SAO PAULO: 55-11-3958-0779 0800-7610651 CHILE 1230-020-2863 CHINA CHINA A: 86-400-810-4789 10800-712-1670 CHINA CHINA B: 86-400-810-4789 10800-120-1670 COLOMBIA 01800-9-156474 CROATIA 080-08-06-309 CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 DENMARK 45-7014-0284 8088-8324 EGYPT 0800000-9029 ESTONIA 800-011-1093 FINLAND 358-9-5424-7162 0-800-9-14610 FRANCE LYON: 33-4-26-69-12-85 080-511-1496 FRANCE MARSEILLE: 33-4-86-06-00-85 080-511-1496 FRANCE PARIS: 33-1-70-70-60-72 080-511-1496 GERMANY 49-69-2222-20362 0800-664-4247 GREECE 30-80-1-100-0687 00800-12-7312 HONG KONG 852-3001-3863 800-962-856 HUNGARY 36-1-700-8856 06-800-12755 INDIA INDIA A: 000-800-852-1268 INDIA INDIA B: 000-800-001-6305 INDIA INDIA C: 1800-300-00491 INDONESIA 001-803-011-3982 IRELAND 353-1-246-7646 1800-992-368 ISRAEL 1-80-9216162 ITALY MILAN: 39-02-3600-6007 800-986-383 ITALY ROME: 39-06-8751-6018 800-986-383 ITALY TORINO: 39-011-510-0118 800-986-383 JAPAN OSAKA: 81-6-7878-2631 0066-33-132439 JAPAN TOKYO: 81-3-6868-2631 0066-33-132439 LATVIA 8000-3185 LUXEMBOURG 352-27-000-1364 8002-9246 MALAYSIA 1-800-81-3065 MEXICO GUADALAJARA (JAL): 52-33-3208-7310 001-866-376-9696 MEXICO MEXICO CITY: 52-55-5062-9110 001-866-376-9696 MEXICO MONTERREY: 52-81-2482-0610 001-866-376-9696 NETHERLANDS 31-20-718-8588 0800-023-4378 NEW ZEALAND 64-9-970-4771 0800-447-722 NORWAY 47-21-590-062 800-15157 PANAMA 011-001-800-5072065 PERU 0800-53713 PHILIPPINES 63-2-858-3716 1800-111-42453 POLAND 00-800-1212572 PORTUGAL 351-2-10054705 8008-14052 ROMANIA 40-31-630-01-79 RUSSIA 8-10-8002-0144011 SAUDI ARABIA 800-8-110087 SINGAPORE 65-6883-9230 800-120-4663 SLOVAK REPUBLIC 421-2-322-422-25 0800-002066 SOUTH AFRICA 080-09-80414 SOUTH KOREA 82-2-6744-1083 00798-14800-7352 SPAIN 34-91-414-25-33 800-300-053 SWEDEN 46-8-566-19-348 0200-884-622 SWITZERLAND 41-44-580-6398 0800-120-032 TAIWAN 886-2-2795-7379 00801-137-797 THAILAND 001-800-1206-66056 TURKEY 00-800-151-0516 UNITED ARAB EMIRATES 8000-35702370 UNITED KINGDOM BIRMINGHAM: 44-121-210-9025 0808-238-6029 UNITED KINGDOM GLASGOW: 44-141-202-3225 0808-238-6029 UNITED KINGDOM LEEDS: 44-113-301-2125 0808-238-6029 UNITED KINGDOM LONDON: 44-20-7108-6370 0808-238-6029 UNITED KINGDOM MANCHESTER: 44-161-601-1425 0808-238-6029 URUGUAY 000-413-598-3421 USA 1-517-345-9004 866-692-5726 VENEZUELA 0800-1-00-3702 VIETNAM 120-11751 Thank you. Kind regards, Julie

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Invitation to a call on Nominet appeal process on Tuesday 12 December
by Mary Wong Dec. 12, 2017

Dec. 12, 2017

Dear all, With apologies for the short notice, staff is pleased to inform you that we have scheduled a call tomorrow (Tuesday 12 December) at 1800 UTC, between interested Working Group members and David Taylor (a partner at the Hogan Lovells law firm, who is a Nominent panelist and veteran ICANN community participant) as well as Nick Wenban-Smith (Nominet’s legal counsel). As you may recall, a suggestion was made by Paul Keating around our ICANN60 meeting that it may be helpful for the Working Group to look at the Nominet appeal process, as part of our deliberations over whether a (and if so, what) recommendation should be made in respect of the various aspects of Option C. For the call tomorrow, David and Nick will walk interested Working Group members through the Nominet appeal process, and answer any questions we may have about it. The GNSO Secretariat will send out a calendar invitation shortly. Thanks and cheers Mary

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Action items from Working Group call this past Thursday
by Mary Wong Dec. 11, 2017

Dec. 11, 2017

Dear all, The following were captured as Action Items by staff from the last Working Group call, held on Thursday 7 December: * Working Group members who support the suggestion that a general recommendation be made, to refer the question of balancing the rights of IGO complainants with those of registrants (vis-à-vis the scenario where a losing respondent in a UDRP files proceedings in a national court and the IGO complainant succeeds in pleading jurisdictional immunity and including a possible refinement/modification of Paragraph 4(k) of the UDRP), to the RPM Review Working Group are to develop a specific proposal for full Working Group discussion at the meeting this coming Thursday (14 December); and * George Kirikos to circulate updated specific language, if possible, in relation to Option 6 for Working Group consideration. Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Wednesday, December 6, 2017 at 18:08 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Topics for discussion on Working Group call today 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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Recordings, attendance & AC Chat for IGO-INGO Curative Rights Protection PDP WG call on Thursday, 7 December 2017 at 17:00 UTC
by Julie Bisland Dec. 7, 2017

Dec. 7, 2017

Dear All, Please find the AC Chat attached, and the attendance, MP3 recording, and AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 7 December 2017 at 17:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-07dec17-en.mp3 AC Recording: https://participate.icann.org/p5eyj5b6tk4/<https://participate.icann.org/p5eyj5b6tk4/?OWASP_CSRFTOKEN=c5dc117acd7d7b4d…> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar Attendees: David Maher George Kirikos Petter Rindforth Paul Tattersfield Philip Corwin Poncelet Ileleji Jay Chapman Nat Cohen Zak Muscovitch Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Julie Bisland ** 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: https://community.icann.org/x/ZBJyB Thank you. Kind regards, Julie

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“Selling” Patents to Sovereign Nations Shouldn’t Mean Bad Patents Can’t Be Challenged
by George Kirikos Dec. 7, 2017

Dec. 7, 2017

Hi folks, After posting that WindCreek.com tribal immunity court case earlier today, I noticed a posting by the EFF today on a related tribal immunity issue, in relation to patents: https://www.eff.org/deeplinks/2017/12/selling-patents-sovereign-nations-sho… A large drug company is attempting to game the patent system by pretending to "sell" some patents to the Saint Regis Mohawk tribe. Unlike a normal "sale", in this sham transaction, the Mohawk tribe would receive money from Allergan! And, the tribe would be expected to assert immunity in the event its patents are challenged by others at the Patent Office. "This deal has significant ramifications for the patent system if it is successful. As one judge described the deal: What Allergan seeks is the right to continue to enjoy the considerable benefits of the U.S. patent system without accepting the limits that Congress has placed on those benefits through the administrative mechanism for canceling invalid patents." The parallels to our own work with the mutual jurisdiction clause is evident (both in the IGO case, and in the interrelated UK "cause of action" situation too). The EFF made a brief that is very comparable to the "in rem" Option #6 proposal in this very PDP: "On November 30, 2017, EFF and Public Knowledge submitted a brief arguing that the Patent Office has all the authority it needs to continue the inter partes review proceeding, despite the Tribe’s sovereign immunity. We argued that the proceeding was not one that required the Tribe’s presence at all, meaning sovereign immunity had no application." (i.e. that's what Option #6 accomplishes, removing the need to consider immunity at all, because the dispute doesn't require the IGO's presence if filed in rem against a domain itself) Like in our work, they're dealing with an "edge case" that might rarely come into play, and might end up be closed off: "It may turn out that this dispute is irrelevant in the short term, as after the deal was announced, a federal court invalidated the patents (that decision is on appeal). Regardless of the outcome with respect to the Restasis patents, however, it is clear that other patent holders are engaging in similar deals [PDF] with sovereign tribes. EFF is pushing back against these deals as an improper assertion of sovereign immunity." This also plays into the point that Paul Tattersfield has raised, i.e. what to do with regards to IGOs who are "cybersquatting", with TM owners being denied relief! While an IGO per se might not normally do this, one can imagine someone creative cutting a deal with an entity like an Indian Tribe to conduct large scale cybersquatting operations, and then invoking immunity as a defense even from the UDRP/URS itself (since the UDRP/URS are supposed to consider applicable national law, e.g. see section 15(a) of the UDRP rules, "15. (a) A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." when rendering their verdicts, they might decide that the Tribe could assert immunity withinthe UDRP/URS itself), before it ever got to a court. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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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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