May 2017 - Gnso-igo-ingo-crp

Proposed Implementation of GNSO Consensus Policy Recommendations for the Protection of IGO&INGO Identifiers in All gTLDs
by George Kirikos July 8, 2017

July 8, 2017

FYI, ICANN published this last night: https://www.icann.org/public-comments/igo-ingo-protection-2017-05-17-en and conceivably it might impact our work to some degree. More comments later, once I've had time to analyze it fully. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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- Outstanding Action Items
by Steve Chan May 31, 2017

May 31, 2017

Dear WG Members, This message is to confirm a couple of action items that staff still needs to work on. Regarding the pros and cons around recommendation 4 and the 2 options, try and integrate an element of a risk analysis and/or data analysis to the existing document. Develop a pros and cons document related to a separate dispute resolution process With other commitments, staff has not yet been able to devote adequate time to these action items, but just wanted to let you all know that the work is in progress. Best, Steve Steven Chan  Sr. Policy Manager   ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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Recordings, Attendance & AC Chat from IGO-INGO Curative Rights Protection PDP WG call on Thursday, 25 May 2017 at 16:00 UTC
by Michelle DeSmyter May 25, 2017

May 25, 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, 25 May 2017 at 16:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-25may17-en.mp3 <https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-25may17-en.mp3> AC Recording: https://participate.icann.org/p4b9arbzl24/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> On page: https://gnso.icann.org/en/group-activities/calendar[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> Attendees: George Kirikos – Individual Jay Chapman – Individual Paul Tattersfield – Individual Petter Rindforth – IPC (co-chair) Mason Cole – RySG Osvaldo Novoa - ISPCP David Maher - RySG Apologies: Phil Corwin – BC (co-chair) Mary Wong - staff ICANN staff: Steve Chan 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: https://community.icann.org/x/RhPfAw Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for Thursday, 25 May 2017 Michelle DeSmyter:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 25 May 2017 at 16:00 UTC for 90 minutes. Michelle DeSmyter:Meeting agenda page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Petter Rindforth:Hi George George Kirikos:Hi Petter. Paul Tattersfield:Hi George, Petter George Kirikos:Hi Paul. George Kirikos:What's a quorum? 5? Osvaldo Novoa:Hello all George Kirikos:Hi Osvaldo. Steve Chan:Hi George, it's up to chair discretion. George Kirikos:We have 5 now. Welcome, Mason. Steve Chan:At least we have 4 + chair now though! Mason Cole:Greetings George Kirikos:Hi again. George Kirikos:Adobe totally died on me. George Kirikos:I sent some of my thoughts on the discussion document to the mailing list, see: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-May/000742.html Steve Chan:@Petter, It's available on the Wiki - I can provide a link George Kirikos:Certainty as to applicable law --- not certainty as to the result, though. George Kirikos:(law and venue) Steve Chan:You can find a number of background documents on the Wiki here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Steve Chan:The specific WIPO document is here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_do… Jay Chapman:reasonable, legitimate points, George. Paul Tattersfield:intersting points George, thanks for explaining them George Kirikos:New, in terms of the finality, since Option 1 is a final decision in court, vs. Option 2 is a final decision with less transparency. Jay Chapman:Would option 2 have the effect of preventing a registrant from going to a court of mutual prior to the rendering of a UDRP decision? George Kirikos:Good point, Jay. Paul Tattersfield:Perhaps we could have the best of both options, go with option 1 and recommend the RPM WG looks at offering an arbitration option only with agreement from both parties for all domain names not just IGO names? George Kirikos:@Paul: no need for a policy on that, as parties can always voluntarily decide to do so. Jay Chapman:Even if the answer to my question is "No", wouldn't the practical effect of option 2 be encouraging a court to punt? Jay Chapman:That's a valid point as well, George. Paul Tattersfield:@george in the us yes but not in the uk for example George Kirikos:Where is the IGO special procedure created by the USPTO?? George Kirikos:I'm sure TM holders want all the protections of the courts, and wouldn't agree to procedural changes that reduce their rights simply because an opponent is an IGO. Paul Tattersfield:6ter listing? George Kirikos:(i.e if an IGO wanted to challenge an issued TM in the US, for example) Paul Tattersfield:in rem even? Jay Chapman:just for clarification, how many people are in the "Full" wg? George Kirikos:28: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… Steve Chan:Jay, the membership list is here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… George Kirikos:Lots of inactive members. Jay Chapman:We've averaged less than 10 for the past several months on the calls Paul Tattersfield:https://community.icann.org/display/gnsoicrpmpdp/Attendance+Re… George Kirikos:Weight the voting by attendance, perhaps. :-) Jay Chapman:thx Paul, Steve George Kirikos:That's a good idea. George Kirikos:"Registration OR use" vs. "AND", but also the rest of the terms on page 6 (section 4(a)) reflect gaming by IGOs, to rewrite the legal test to make it easier for them to win. George Kirikos:And the last part, "must prove that ANY of the elements" instead of ALL elements, etc. Paul Tattersfield:@george strange how indpendent people would try and make those extra changes along wih the main issues George Kirikos:Page 34, very last point, also raises the point of treating new gTLDs differently from existing domain names. George Kirikos:That's what they claim, but the small group proposal was also one-sided. George Kirikos:We saw their small group proposal. Paul Tattersfield:but the small group report was exparte this was a staff draft George Kirikos:We already know IGOs have used the existing UDRP successfully. Just need to educate them more, on their existing options. George Kirikos:@Paul: yes, was referencing Petter's statement that the IGOs only wanted a tweak of the UDRP. But, their small group report was more than a tweak. George Kirikos:I wrote about the 2007 staff report back in 2007, see CircleID blog post: https://urldefense.proofpoint.com/v2/url?u=http-3A__www.circleid.com_posts_… George Kirikos:Recall (as pointed out in the comments to that blog post) all the fear-mongering about the .biz TLD raised by the Bank for International Settlements. George Kirikos:Too much FUD created by IGOs. George Kirikos:We can use the small group proposal, perhaps? George Kirikos:Other mailing list, with IGOs: http://mm.icann.org/pipermail/discussion-igo-rc/2017-May/date.html Steve Chan:@Petter, I tried to adjust the action item to take into account your comments just now. Please let know if I've not captured it correctly. Steve Chan:Nothing from me Petter, thanks Osvaldo Novoa:Thank you and Bye George Kirikos:Bye folks! Paul Tattersfield:thanks Petter, All, bye Jay Chapman:Thanks, all

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Draft pros/cons document for Recommendation #4, Options 1 & 2
by Mary Wong May 25, 2017

May 25, 2017

Dear Working Group members, Please find attached a preliminary draft document that staff has prepared pursuant to the group’s request on the call last week. The document attempts to summarize the benefits and disadvantages of recommending either Option 1 or Option 2, in relation to the IGO immunity question and the appropriate handling of further proceedings based on an initial UDRP/URS panel decision. As this is a “living document”, please let us know what your comments and any additional pros/cons are. We can also put the document into a Google Doc format if that will make it easier for everyone to comment and edit. Thanks and cheers Mary

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Announcement: Pre-ICANN59 Policy Update Webinar Thursday, 15 June 2017 at 10:00 UTC and 19:00 UTC
by Terri Agnew May 22, 2017

May 22, 2017

https://www.icann.org/news/announcement-2017-05-22-en Please RSVP via <https://goo.gl/forms/LTVbnZ8zXIBp5fFm1> this form by 13 June 2017. You will receive remote participation details the week of 12 June 2017. The ICANN Policy Development Support Team will host a Policy Update Webinar on Thursday, 15 June 2017 at 10:00 and 19:00 Coordinated Universal Time (UTC), in preparation for the upcoming ICANN59 Policy Forum in Johannesburg, South Africa. The purpose of the webinar is to summarize policy activities across the ICANN policy development community and to brief the community on the Empowered Community consultation and cross-community sessions taking place in Johannesburg. Briefings on the Empowered Community Consultation and Cross-Community Sessions: * Special session on the Proposed Fundamental Bylaws Amendments * Next-Generation Generic Top-Level Domain (gTLD) Registration Directory Services (RDS) policy requirements * General Data Protection Regulation (GDPR) * Geographic names * Operational side of ICANN's Operating Plan and Budget * Who sets ICANN's priorities? Updates on Supporting Organizations and Advisory Committees: * Address Supporting Organization (ASO) and regional Internet registries (RIR) policy development * Country Code Names Supporting Organization (ccNSO) * Generic Names Supporting Organization (GNSO) * At-Large Advisory Committee (ALAC) and At-Large Community * Governmental Advisory Committee (GAC) * Root Server System Advisory Committee (RSSAC) * Security and Stability Advisory Committee (SSAC) The two sessions are duplicates, scheduled to accommodate different time zones. Each session runs in English for 90 minutes. The webinar will be conducted via Adobe Connect along with a dial-in conference bridge for audio. Participants will have the opportunity to ask questions at the end of each session. During the course of the webinar, participants may submit questions using the chat function in Adobe Connect. Recordings of the webinars will be made available <https://www.icann.org/resources/pages/presentations-2012-08-27-en> here. The Policy Development Support Team is always available to answer any questions via email at <mailto:policyinfo@icann.org> policyinfo(a)icann.org. Please RSVP via <https://goo.gl/forms/LTVbnZ8zXIBp5fFm1> this form by 13 June 2017. You will receive remote participation details the week of 12 June 2017. Ozan Sahin Community Engagement Support Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Direct Line: +90.212.999.6218 Mobile: +90.533.641.0007 Email: ozan.sahin(a)icann.org <mailto:ozan.sahin@icann.org> Skype: ozan.sahin.icann www.icann.org

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Poll: Attendance for 25 May Working Group call
by Mary Wong May 19, 2017

May 19, 2017

Dear all, In view of the fact that several active Working Group members plan to be at the International Trademark Association (INTA) Annual Meeting, our co-chairs would like to know how many members will be able to attend a meeting on Thursday 25 May 2017 at our usual time of 1600 UTC. Please reply to this email if you plan to be on the Thursday 25 May call. Thank you! Cheers Mary

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Follow up from WG call on Thursday 11 May 2017 at 1600 UTC
by Mary Wong May 17, 2017

May 17, 2017

Dear Working Group members, As requested on the call last Thursday, please find attached copies of: (1) the New York Convention for the Enforcement of Foreign Arbitral Awards; and (2) the UNCITRAL Arbitration Rules. Note that their scope is very different - the Convention is the main international treaty that specifies the conditions and process of recognition by national courts of a foreign arbitration award, whereas the UNCITRAL Rules are a well-known set of procedural rules that can be chosen by parties in a commercial dispute to govern the arbitration between them. The UNCITRAL Rules do not, however, specify a particular venue or dispute resolution provider to manage the arbitration proceeding. You can also find these texts as well as additional information and background, respectively, at: http://www.newyorkconvention.org/ and http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitrat…. Finally, staff is currently working on a draft of a document outlining the pros/cons for Options 1 and 2 in relation to the Working Group’s preliminary recommendation #4. We hope to circulate this as soon as we can so that members can review and discuss this topic via this mailing list in lieu of a meeting this week (the next Working Group meeting is scheduled to take place next week – 25 May – instead). Thanks and cheers Mary From: <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Steve Chan <steve.chan(a)icann.org> Date: Thursday, May 11, 2017 at 07:52 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: [Gnso-igo-ingo-crp] - Proposed Agenda for WG call on Thursday 11 May 2017 at 1600 UTC Dear WG Members, Apologies for the late delivery. The proposed agenda for the upcoming WG call this Thursday 11 May 2017 at 1600 UTC is as follows; please also note that this call has been scheduled for 90 minutes: 1. Welcome/SOIs 2. Review of updated table of facts, arguments, new sources (attached and distributed by Mary Wong on 9 May) 3. Discussion of arbitration as an option 4. Discussion about the possibility of a separate and narrow dispute resolution procedure for IGOs 5. AOB Best, Steve Steven Chan  Sr. Policy Manager   ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org<mailto:steve.chan@icann.org> mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<applewebdata://310CAD3E-E244-4690-A938-C2655DD44BDE/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-…>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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Recordings, Attendance & AC Chat for IGO-INGO Curative Rights Protection PDP WG call on Thursday, 11 May 2017 at 16:00 UTC
by Michelle DeSmyter May 11, 2017

May 11, 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, 11 May 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-11may17-en.mp3 AC Recording: https://participate.icann.org/p23uuk35dy3/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> On page: https://gnso.icann.org/en/group-activities/calendar The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> Attendees: George Kirikos – Individual Jay Chapman – Individual Paul Tattersfield – Individual Petter Rindforth – IPC (co-chair) Phil Corwin – BC (co-chair) Mason Cole – RySG Paul Keating - NCUC Apologies: ICANN staff: Mary Wong Steve Chan Dennis Chang Berry Cobb 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: https://community.icann.org/x/ow7fAw Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for Thursday, 11 May 2017 Michelle DeSmyter:Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 11 May 2017 at 16:00 UTC for 90 minutes. Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Petter Rindforth:HI George & All George Kirikos:Hi Petter. Michelle DeSmyter 2:Hello Petter and George! George Kirikos:Hi Michelle. Petter Rindforth:Hi there - hope we will soon see more participants Michelle DeSmyter 2:I just sent out another reminder to the group :) Petter Rindforth:Thanks! Philip Corwin:I am waiting on operator George Kirikos:What's the quorum for a PDP? George Kirikos:Welcome, Phil. Michelle DeSmyter 2:I will let them know you are waiting for an operator to answer Philip Corwin:Thanks George Paul Tattersfield:Hello everyone George Kirikos:Welcome Paul. Petter Rindforth:waiting as well... Philip Corwin:On call now Petter Rindforth:same here Mary Wong:Hola Mary Wong:Steve Chan has his hand up George Kirikos:We've gone through much of it already. George Kirikos:This is better than Mary's regular connection. :-) Petter Rindforth:External legal advice on 6ter: OECD, UN, UPU, WHO & WIPO: regarding the consultation of a legal expert, my (Jonathan Passaro, OECD) IGO colleagues share the OECD’s concern that such an exercise will significantly prolong what has already been an extensive and resource-intensive process. George Kirikos:Page 10. George Kirikos:Oops, maybe 9. George Kirikos:Even page 7. George Kirikos:http://www.newyorkconvention.org/11165/web/files/original/1/5/15432… Paul Keating:It applies to ANY arbitration. Mary Wong:It covers recognition by a national court of an arbitration decision. Paul Tattersfield:commercial disputes? George Kirikos:It seems to just be a general thing, not specific to IGOs, saying that arbitrations might be recognized. Note there are exceptions when it can't be recognized, e.g. Article V(2). Mary Wong:It is not specific to IGOs. Paul Keating:@Phil, This is a set of standards which if met means that the arbitration award can be enforced as a judgment in ANY country that has signed the convention. Nothing more. George Kirikos:All this says is that if both parties agree to arbitration, then courts can recognize the decisions. Nothing really magical. Mary Wong:We will circulate the treaty text as well as the previously-circulated UNCITRAL Arbitration Rules. George Kirikos:Article 1.3 is interesting, as it mentions that States can limit it to commercial disputes. Petter Rindforth:Those offering the arbitration (some examples): https://urldefense.proofpoint.com/v2/url?u=https-3A__iccwbo.org_about-2Dus_… , https://urldefense.proofpoint.com/v2/url?u=https-3A__www.swissarbitration.o… , https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sccinstitute.com_&d… , www.lcia.org/ Paul Tattersfield:George :) Petter Rindforth:As said, we already have the IGO input and majority support for arbitrration George Kirikos:The arbitration would also be assuming that the relevant "law" is the UDRP (with its remedies like transfer), vs. national courts who could interpret the ACPA, etc. George Kirikos:(with money damages, etc.) George Kirikos:A separate DRP would also be replacing national law with a process that takes away a registrant's rights, if it cannot be appealed to the courts. George Kirikos:Imposing binding arbitration means that the status quo, whereby the existence of a UDRP doesn't interfere with either party's legal rights, would be upset. George Kirikos:(i.e under the status quo, legal rights in national courts are not affected) George Kirikos:+1 Paul George Kirikos:It would be a contract of adhesion to impose arbitration for that 3rd party beneficiary. George Kirikos:What have registrants gained, in "agreeing" to such a bargain? Nothing. George Kirikos:Option 1 is the only solution to preserve the status quo legal rights of all parties. Mary Wong:@George, there are ways to deal with that - e.g. have the registrant choose whether to agree to binding arbitration when the complaint is filed. George Kirikos:@Mary: the registrant can agree to binding arbitration even without the UDRP. George Kirikos:However, the IGOs are talking about taking away that voluntary choice. George Kirikos:We already advised IGOs that they can use an assignee, agent, licensee. George Kirikos:It's the IGOs choice if they don't want to shield themselves. Mason Cole:All, I've been called away from this call. Speak to all soon. George Kirikos:Bye Mason. George Kirikos:We shouldn't let politics decide our analysis. Petter Rindforth:Whatever we decide, it much better to have a majority or full support for one solutions, rather than give it the the GNSO Council to decide Petter Rindforth:I agree on Option 2 George Kirikos:It wouldn't permit cybersquatting to continue. The governments or national authorities or IGOs could still use the courts (as they can if the UDRP didn't exist). George Kirikos:Right, Paul --- no TM holder would agree to binding arbitration, instead of accepting the courts. Jay Chapman:exactly, Paul George Kirikos:There's no principled reason to create a new policy for domains, unlike TMs themselves. Mary Wong:@Paul, yes - this kind of recommendation is within the remit of our WG. If we go with Option 2, all that you are suggesting can be specified. Mary Wong:@George, on your last point - if we go down that path, there will likely need to be some kind of notice to a registrant that if he/she is the respondent to a complaint, he/she may be asked to submit to binding arbitration. This is similar to what I said in chat earlier. George Kirikos:Option 2 doesn't even end the story, since a registrant could then sue the IGO in court, once it obtained the domain name. George Kirikos:Since IGOs are bound by the registrar-registrant agreement. George Kirikos:Option 2 would mean also having to modify every registration agreement?? George Kirikos:"GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS." George Kirikos:http://www.loffs.com/Domains/Legal/master.html George Kirikos:Is every registrar going to be forced to rewrite their agreements, to say disputes for IGOs are different? (if Option 2 is supported) George Kirikos:"Remedies of the panel" -- implies that the UDRP is the relevant law, which is untenable. George Kirikos:That staff report was already rejected by the community in the past. Which circumstances changed? Other than the introduction of the failed new gTLD program, nothing. Mary Wong:@George, it wasn't so much rejected as that the GNSO at the time did not proceed with a PDP in which that text would be discussed. As there was no PDP, there was no substantive discussion on it. George Kirikos:One other point I forgot to make ---- if the GAC is so concerned, why is it there are no ccTLDs we're aware of that create a special procedure for IGOs? George Kirikos:(GAC members could certainly impose such policies within their own countries, but don't) George Kirikos:Can we have a straw poll on Option 1 vs Option 2 at this point? George Kirikos:e.g. checkmark for Option 1, X for option 2? Mary Wong:@George, there are only 5 WG members on the call so not sure that would indicate much George Kirikos:(we know Phil is leaning to option 2) George Kirikos:Would be interesting to see where we stand, for those here. Mary Wong:@Petter, thanks - much appreciated ) Mary Wong::) George Kirikos:May 25th? Mary Wong:OK we will send a note to the mailing list George Kirikos:Bye folks. Paul Tattersfield:thanks all, bye everyone Paul Keating:thank you all. Good bye

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Issues raised by Small discussion group concerning IGO and Red Cross identifiers
by George Kirikos May 11, 2017

May 11, 2017

Hi folks, During today's call, reference was made to the Small discussion group concerning IGO and Red Cross identifiers, whose mailing list archives can be visited via: https://mm.icann.org/mailman/listinfo/discussion-igo-rc http://mm.icann.org/pipermail/discussion-igo-rc/ Our own Phil Corwin is on that mailing list, and doing an excellent job in my opinion of representing our work to date. I've been going through the archives, and have some comments/thoughts below: 1. in the post at: http://mm.icann.org/pipermail/discussion-igo-rc/2017-March/000116.html the OECD rep made bold and overbroad assertions about the nature of IGO protections in national legislation, stating: "Canada's legislation in this regard extends beyond simple refusal to register a conflicting trademark: §9(1) of the Trade-marks Act states that "No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark..." That's a highly misleading statement/snippet, perhaps assuming that no one would actually look up the full text of the Canadian legislation. I did. It's at: http://laws-lois.justice.gc.ca/eng/acts/t-13/ http://laws-lois.justice.gc.ca/eng/acts/t-13/page-2.html#h-3 and it makes clear via explicit language that there are excepted uses: 9(2) Excepted uses (2) Nothing in this section prevents the adoption, use or registration as a trade-mark or otherwise, in connection with a business, of any mark ..... (ii) an armorial bearing, flag, emblem or abbreviation mentioned in paragraph (1)(i.3), *****unless the use of the mark is likely to mislead the public as to a connection between the user and the organization.***** (emphasis added) And section 9(1)(i.3) was (on the same page) referencing IGOs and Article 6ter: "(i.3) any armorial bearing, flag or other emblem, or the name or any abbreviation of the name, of an international intergovernmental organization, if the armorial bearing, flag, emblem, name or abbreviation is on a list communicated under article 6ter of the Convention or pursuant to the obligations under the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement stemming from that article, and the Registrar gives public notice of the communication;" So, it's clear that that the "Excepted uses" in Canada law recognizes coexistence explicitly, mirroring the language of Article 6ter section 1(c) which made the recognition of coexistence via exceptions for: "when the use or registration referred to in subparagraph (a), above, is not of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization." and which is reflected in our own group's recommendations (which the IGOs did not like, as they seem to ignore section 1(c) of Article 6ter repeatedly). So, I hope this is brought to the attention of the "Small discussion group", to ensure that they're not making incorrect assessments of the nature of the IGO protections based on misleading statements from the IGOs. 2. In the post at: http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000132.html where, as we discussed today during the call, Bruce Tonkin proposed asking for external legal advice regard relevant national laws in relation to IGO protection, "before being able to design a new dispute resolution process." I am confident that at least in Canada and the USA, that no such national laws limit the due process rights of those accused of misusing the IGO marks --- the accused would still "get to have their day in court." In the past, we discussed the possibility of allowing representatives of national authorities to bring the UDRP/URS actions (instead of the IGOs themselves), as a way forward. Perhaps this should be revisited, to handle the immunity issue once and for all. National authorities would obviously face no question of immunity before their own courts (except perhaps those in totalitarian regimes where due process doesn't exist). If a Canadian entity is accused of misuse of an IGO by a Canadian national authority in a UDRP/URS, a decision could be appealed by either side to the relevant Canadian courts, leaving the IGO out of the process and shielded from the immunity issue. Bruce Tonkin might be sympathetic to that possibility, when he mentioned in a later post at: http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000147.html "a Government on their behalf" can act to protect IGOs via the laws of their jurisdictions. He also wrote: " I am assuming that it is in the "public interest" for an IGO or Government to take some action to stop the mis-use - just trying to be clear "how" that would be done." If, in the public interest, we explicitly allow governments or national authorities to bring the UDRP/URS, as "agents" of the IGO, this would appear to solve many issues. We already issued policy guidance about "assignees, licensees and agents", so perhaps we could be more explicit in our report about permitting national authorities to be the agents of the IGOs, as part of our "workaround"?? [Of course, the national authorities don't have to use the UDRP/URS at all, they could just go directly to their courts using existing judicial mechanisms.] Any ICANN-developed process *needs* to ensure that full due process for domain name registrants (including via access to the courts) is not eliminated, otherwise ICANN would be making up new law, beyond what exists in national laws. 3. The rep from WIPO stated at: http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000134.html "Standing for IGOs which need not be expressly grounded in trademark law as such, as IGOs are created by governments under international law and are in an objectively different category of rights holders." which is an odd statement, given that the OECD rep previously pointed explicitly at Canada's Trademark Act! While other nation's laws differ, we should not be creating new DRPs for every possible event of fraud or misuse of the DNS --- that's what the national courts are there for. When Barclays plead guilty of manipulating FX rates: http://www.circleid.com/posts/20150520_should_barclays_lose_the_barclays_to… the national authorities didn't seek "relief" for that disgusting and illegal behaviour via the UDRP or some other DRP created by ICANN, or argue that ICANN should create a new DRP for FX manipulation. There has been talk about creating a "Copyright" version of the UDRP, for example, or other DRPs. ICANN should not be wasting limited volunteer resources and time via mission creep, trying to replace or supercede the national laws of 200+ members. At least with the UDRP/URS, there was a strong "lowest common denominator" amongst those national trademark laws, which are reflected in the policies, and the policies directly permit court action at any time, either before, during or after a panel decision. It's clear that the IGOs want to eliminate those due process protections of the courts, by compelling arbitration, by revisiting issues that have been looked at for nearly 20 years (and repeatedly rejected by the community). 4. As I've noted in the past (and noted in my comments on our draft report) https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… IGOs seem to misunderstand their choices. As I wrote: "Note that the above roadmap is in addition to all the other legal and non-legal options that an IGO has, including: - sending cease and desist letters - filing WHOIS accuracy complaints (most criminals use false WHOIS) - contacting registrars when there is abusive/illegal conduct - contacting payment processors (Paypal, Visa, Mastercard, etc.) in the event of financial fraud - contacting webhosting companies to take down illegal content - pursuing court action as a first option - asking law enforcement to pursue criminal behaviour" The entire work of that "small discussion group" seems to want to reinvent the wheel, and replace all existing law in 200+ countries with poorly thought out ICANN mechanisms that eliminate due process for registrants. 5. One of the ICANN board members stated at http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000139.html that "I agree, excellent idea, but selection of the expert will be key. The GNSO had asked for a legal opinion before, but it was a US expert whose conception of international law was not necessarily shared by the Europeans!" Not only is this an unfair assessment of Professor Swaine's work, it seems to suggest that IGOs can "massage" the process and predetermine the outcome through selection of an "expert" who will parrot their incorrect views. This is alarming. While he seemed to backtrack a bit in a followup post at: http://mm.icann.org/pipermail/discussion-igo-rc/2017-April/000142.html it still seems that there are issues of gaming the outcome via selection of a "sympathetic expert". We saw that in the new gTLD process itself, when ICANN commissioned dubious external "economic reports" by the Compass Group in order to support a predetermined outcome desired by the ICANN Board. In conclusion, I think this demonstrates why having a "parallel" group is a bad idea, because it's trying to redo our comprehensive work, and has fewer eyes on it compared to this formal PDP. It makes little sense to me that IGOs have ample time to participate in that mailing list, yet had no time to participate in our PDP as members. I think that highlights the "forum shopping" argument, that IGOs are looking for sympathetic forums (of which binding arbitration is an example) to gain advantages of an uneven playing field. Other members of this PDP working group might want to take some time to review those mailing list archives (took me a couple of hours, although I didn't review any audio or transcripts or their Wiki), to look for other factual errors and issues that might not have been caught by that group. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Laptops. Travel warnings - INTA
by Paul Keating May 11, 2017

May 11, 2017

Sounds like no more laptops on planes. They don't discuss iPads..... http://www.thedailybeast.com/articles/2017/05/10/u-s-to-ban-laptops-in-all-… Sent from my iPad

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