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Re: [Gnso-igo-ingo-crp] Option #6 reminder
by Paul Keating Nov. 30, 2017

Nov. 30, 2017

Phil, While I agree that 4(k) is not well written, at least as concerns IGO/NGOs the issue of sov. Immunity waiver is limited to actions concerning the domain name. This has been upheld in several courts (limiting the nature of the claims) and most recently I have seen it in the Marchex decision in which the court limited the remedies sought by the plaintiff in a default action because the judge felt that the waiver only encompassed issues as to the control over the domain and did not include any right to damages thus treating the action as an ³in rem² action for all intents and purposes (in an In Rem action under the ACPA damages are prohibited). I attach the recommendation of the Magistrate which was adopted by the court. However, it is not possible for a losing Respondent to sue ³In Rem² unless the order has already been carried out by the registrar. The reason being that prior to domain transfer, the domain is still held by the respondent and thus any ³In Rem² action would be moot. I do agree that a change is required to 4(k) so as to increase the odds that a losing registrant may have their day in court. At present, courts have almost universally agreed that 4(k) merely allows one to file but doe snot itself create any form of underlying claim that is operative under the local laws of the selected jurisdiction. Thus, to survive a motion to dismiss the registrant must find a valid underlying claim upon which to base the action permitted by 4(k). In the US this is simple because of the ACPA. In other jurisdictions it is not so clear. I am addressing one in the EU and we are in part basing the claim upon the Human Rights Directive which is binding law in all EU member states. To make 4(k) really work, several things must be addressed, including IMHO, the following: 1. Clarify that the UDRP is NOT to be treated as an arbitration under relevant conventions 2. Clarify that in such an action the intention is to have a de novo proceeding not bound by the Panel Ruling 3. Expand the 10 business day rule so as to apply to any action brought in any court of mutual jurisdiction 4. Including in the MJ a forced choice for where the Registry resides 5. Including in the MJ a forced choice for where ICANN resides Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of "Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp(a)icann.org> Reply-To: "Corwin, Philip" <pcorwin(a)verisign.com> Date: Tuesday, November 28, 2017 at 9:12 PM To: "icann(a)leap.com" <icann(a)leap.com>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] Option #6 reminder > George: > > This email is in my co-chair capacity. > > I have clicked on the pipermail link your provide and find this (excerpt) as > your proposal > > paragraph 4(k) of the rules: > > https://www.icann.org/resources/pages/policy-2012-02-25-en > > only specifically contemplates "in personam" court cases brought by > the UDRP respondent (domain owner) against the party who filed the > UDRP (i.e. the UDRP complainant). The relevant part of paragraph 4(k) > is: > > "We will then implement the decision unless we have received from you > during that ten (10) business day period official documentation (such > as a copy of a complaint, file-stamped by the clerk of the court) that > *****you have commenced a lawsuit against the complainant in a > jurisdiction to which the complainant has submitted****** under > Paragraph 3(b)(xiii) of the Rules of Procedure. " > > (emphasis added, via the asterisks) > > However, if the wording was changed very slightly, it would clarify > the situation with regards to "in rem" and/or "quasi in rem" suits, > i.e. the language in the asterisk section above could become: > > "you have commenced a lawsuit ***concerning the domain name**** in a > jurisdiction to which the complainant has submitted" > > i.e. by changing "against the complainant" to "concerning the domain > name", the latter language would cover not only in personam actions > brought against the UDRP complainant, but also cover both in rem and > quasi in rem actions too. > > [Aside: the language of the UDRP is actually very poorly worded; by > the language of 4(k) as it stands now, it doesn't even say that the > lawsuit against the UDRP complainant even needs to relate to the > domain name under dispute! i.e. you could sue for *any* cause of > action, even unrelated to the domain name, and by a strict reading of > the 4(k) language, the registrar has to not implement the decision! > We'll need to fix that in 2018 or 2019 or beyond, in the RPM working > group PDP...] (Emphasis added) > > I want to make sure that your proposal gets thorough review and fair > consideration. But the language you have proposed would apply to all UDRP > disputes, not just those in which an IGO was the Complainant, and as such is > beyond the scope of this WG¹s Charter (as you observe, this UDRP language can > be reviewed by the RPM Review WG when it reaches phase 2 of its effort). > > To cure that overbreadth, would it be possible for you to present your > proposed language as IGO-specific, either as an amendment to Option C as it > was presented in our preliminary consensus call, or as a free-standing option? > I think that would best assist the WG in fully considering it. > > Our likely agenda this week will be on portions of the draft final report on > which we have broad consensus, so you would have until at least next week > before this would be a germane topic for WG discussion. > > Thanks. > > Best regards, Philip > > Philip S. Corwin > Policy Counsel > VeriSign, Inc. > 12061 Bluemont Way > Reston, VA 20190 > 703-948-4648/Direct > 571-342-7489/Cell > > "Luck is the residue of design" -- Branch Rickey > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf > Of George Kirikos > Sent: Monday, November 27, 2017 4:45 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Option #6 reminder > > 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 > <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 > <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/ <http://www.leap.com/> > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org <mailto:Gnso-igo-ingo-crp@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp> > _______________________________________________ Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Mary Wong Nov. 28, 2017

Nov. 28, 2017

Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members – especially those who provided specific comments as part of their poll response – are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary

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Re: [Gnso-igo-ingo-crp] Arbitration costs would be HIGHER than court costs
by Paul Keating Nov. 22, 2017

Nov. 22, 2017

Phil, First, regarding costs of arbitration, the salient report was not about the ICANN arbitration but rather the filing fees and anticipated costs of using NAF, AAA and JAMS - all of whom have minimum fees plus additional fees based upon the ³value² of the dispute. So when speaking about a 3-letter domain name, the value will be high 5 to mid 6 figures. A substantial fee. Second, responding to your comments: > But the most salient point is that Option 3 does not compel the parties to > utilize arbitration as an alternative to judicial review; doing so requires > mutual consent. If either party feels that this route is more expensive than > judicial process or has other disadvantages it can withhold that consent. > PRK: If the arbitration process requires both parties to agree then it is an agreement to agree and is not enforceable against anyone. What benefit would this be to any party? What is the benefit of creating such a complex system? They can already call each other up and contractually agree to hold arbitration. > As for the availability of arbitration in the rare circumstance of an IGO > succeeding in its claim of immunity from judicial process, that provides a net > benefit to domain registrants compared to current policy by providing an > opportunity to get a determination on the merits under applicable national > law, an opportunity that is not available today in the same scenario. PRK: This ³net benefit² exists ONLY when a respondent is faced with a Mutual Jurisdiction whose courts do not recognize a cause of action the Respondent can plead. As noted, the MJ provision does not foreclose use of any otherwise appropriate jurisdiction. For the majority of domains (those run by Verisign) jurisdiction is per se existing in the US (that is where the domain registry - and thus the domain for in rem purposes - is located) and the ACPA grants a specific right of action. The only additional hurdle that a respondent would have to satisfy (if the US was not the stated MJ) would be to obtain a court order enjoining the transfer. This can be obtained ex-parte. And, even if not obtained, most registrant agreements state that receipt of a complaint will result in a lock on the domain which does not guaranty that the UDRP decision would not be enforced but adds some weight. Strong arguments can also be made for an order to reverse the UDRP decision during the litigation even if the transfer has taken place. As a final point, I note that the task of creating the applicable rules for any proposed arbitration process would be enormous and consume many hundreds of hours. I am sorry but I just do not see it. I fully understand the desire to create a result that the GAC and IGOs will accept. I understand that the Board may not accept a recommendation along the lines of our initial recommendation. But that is life as they say and I don¹t believe it is our task to presume a problem exists when neither the evidence nor applicable law shows that it does. And, our attempt to recommend changes to the UDRP based upon that presumed problem, I believe, goes beyond our mandate. Paul On 11/22/17, 6:32 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: > Personal comments: > > I do not believe that the costs of an IRP seeking to overturn an ICANN Board > action, or an arbitration process concerning the complexities of an > employment discrimination case, are directly comparable to the narrower > issues at play in a post-UDRP appeal. > > As for consumer group critiques of arbitration clauses, they have been > subject to criticism on the basis of those entities receiving substantial > funding from the trial bar seeking to expand the ability to bring class > action litigation (I take no position on the merits of their conclusions, and > am equally > skeptical of industry studies claiming great benefits from compulsory > arbitration). > > But the most salient point is that Option 3 does not compel the parties to > utilize arbitration as an alternative to judicial review; doing so requires > mutual consent. If either party feels that this route is more expensive than > judicial process or has other disadvantages it can withhold that consent. > > As for the availability of arbitration in the rare circumstance of an IGO > succeeding in its claim of immunity from judicial process, that provides a net > benefit to domain registrants compared to current policy by providing an > opportunity to get a determination on the merits under applicable national > law, an opportunity that is not available today in the same scenario. > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On > Behalf Of George Kirikos > Sent: Wednesday, November 22, 2017 8:41 AM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Arbitration costs would be HIGHER > than court costs > > Hi folks, > > I believe that the backers of Option #3 are incorrect to claim that > arbitration would be less expensive than the courts. > > I provided some preliminary discussion of this imporant point at the end of > a prior email at: > > http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000884.html > > "Costs -- it's naive to believe that costs would be lower in arbitration > than in a judicial case, while trying to emulate the due process protections > of a court. One need only look at a recent IRP that ICANN lost: > > http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reope > ns-as-panel-finds-apparent-bias > > where the costs of the IRP itself (*not* counting lawyers fees of each > party) amounted to $152,673. In real courts, the actual disbursement costs > and filing fees are relatively low (hundreds of dollars, maybe thousands in > a complex case), because the most substantial cost, namely the labour cost > for the judge (their salary) is paid for by TAXPAYERS! Not so in an > arbitration, where the parties themselves have to pay for the costs of the > panelists (3 panelists, multiplied by hundreds of dollars per hour, > multiplied by many hours adds up quickly)." > > but wanted to have a focused discussion just on this point. > > Here are some additional references to consider (I saved the best for last, > since like the above it directly involved ICANN, so jump to the bottom if > you'd like): > > (1) http://www.lawmemo.com/arb/res/cost.htm > > "Here, Public Citizen presents the first comprehensive collection of > information on arbitration costs. We find: > > The cost to a plaintiff of initiating an arbitration is almost always higher > than the cost of instituting a lawsuit. Our comparison of court fees to the > fees charged by the three primary arbitration provider organizations > demonstrates that forum costs- the costs charged by the tribunal that will > decide the dispute- can be up to five thousand percent higher in arbitration > than in court litigation. These costs have a deterrent effect, often > preventing a claimant from even filing a case. > > Public Citizen's survey of costs finds that, for example, the forum fee for > a $60,000 employment discrimination claim in the Circuit Court of Cook > County, Illinois is $221. The forum fees for the same claim before the > National Arbitration Forum (NAF) would be $10,925, 4,943% higher. An $80,000 > consumer claim brought in Cook County would cost $221, versus $11,625 at > NAF, a 5,260% difference. These high costs are not restricted to NAF; for > the same $80,000 claim, the American Arbitration Association (AAA) would > charge the plaintiff up to $6,650, and Judicial Arbitration and Mediation > Services (JAMS) would charge up to $7,950, amounting to a 3,009% and 3,597% > difference in cost, respectively." > > (2) > https://m.mayerbrown.com/Files/News/04165fd5-5165-41ea-bb6f-19d9235c171d/Pre > sentation/NewsAttachment/7e531e5e-4040-4251-b1a8-1d4b6168c99b/Practice%20Not > e_Duncan_Pros-Cons-Arbitration_oct12.pdf > > "It is often said that arbitration is quicker and cheaper than litigation. > However, arbitrations may in certain cases actually be more protracted and > more expensive than litigation. There are numerous reasons for this, > including: - the additional costs payable in arbitration which are not > applicable in court proceedings. For example, the requirement to pay the > arbitrators' fees, any institutional administrative fees and to pay to hire > the hearing venue > - poorly drafted contracts with arbitration agreements which fail to provide > an adequate and practical framework for the conduct of the arbitration > proceedings - tribunals being unwilling to control the timetable and the > parties' conduct for fear of challenges to the subsequent award on the > grounds of unfairness Disputed enforcement proceedings (although this is an > area which various arbitral institutions are working hard to address, for > example with the new ICC Rules)" > > (3) > https://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/cost.ph > p > > "It is often thought that arbitrations are cheaper than court-based > litigation, because people may agree on a streamlined procedure and avoid > delays that may occur in the formal court process. > > However, an arbitration that is contested may turn out to be longer and more > expensive than going directly to court. The parties may end up in court > fighting about the arbitration as well as their original dispute." > > [George's note: Note, it's clear that for the case of an IGO dispute > involving a domain name owner, where it already went to UDRP, already fought > a battle re: "immunity", that it is a heavily contested case, so would very > likely end up being more costly than court due to the payment of the > arbitrators' fees (which are going to be triple in total due to the 3 person > panel).] > > (4) http://thefirmdubai.com/new/publicationdetails/114 > > "It is submitted that one of the first things to consider should be the > value of the contract and, more precisely, the amount that would be the > subject of a claim if a potential dispute arises. This is important because > arbitration costs and attorney fees for the same are usually much higher > than court fees and attorney fees for litigating the case. Dubai courts > (mainland courts) have a cap on their fees equivalent to AED 40,000 > regardless of the value of the claim, while there is no cap for arbitration > cases. By way of example, a claim with a value of AED 3 million before Dubai > courts (mainland courts) would not involve more than AED 40,000 of court > fees. However, the same-value arbitration would cost AED 130,000 before a > single arbitrator, and three times this amount (roughly AED 350,000) if the > contract provided for a three-arbitrator panel. Moreover, if you > successfully obtained the award, you would have to pay an additional AED > 40,000 by way of court fees to enforce the award. > > Furthermore, the number of panel arbitrators should be carefully considered > because the fees of an arbitration panel of three arbitrators will be three > times that of a sole arbitrator. Recently, a client, an international > supplier of building materials instructed our firm to commence proceedings > against a main contractor to claim an outstanding balance. Upon review of > the supply contract, we discovered the presence of a UNCITRAL arbitration > clause whereby any dispute was to be resolved through a panel of three > arbitrators. When informed of the estimate of arbitration and attorney fees, > the client's representative refused vehemently to proceed down that route > for economic reasons. In the words of the client's representative, the fees > were "exorbitant". However, luckily, after the client submitted to us > additional documents, we detected a loophole in the contract, which we used > to avoid the arbitration agreement. Hence, the decision was taken to bring > proceedings before the Dubai mainland court." > > [George's note: Of note, UNCITRAL rules have been brought up several times > in this PDP as potential rules to follow, and the above is a clear example > of parties to a dispute wanting to avoid their use because the costs would > be "exorbitant".] > > (5)(a) http://domainincite.com/4580-icann-tries-to-dodge-jobs-legal-fees > > "ICANN is still smarting from the last time it headed to arbitration, for > its Independent Review Panel over ICM Registry's .xxx top-level domain. > > ICANN lost that case in February 2010, and had to cover the panel's almost > $500,000 in costs, as well as its own legal fees. The overall price tag is > believed to have comfortably made it into seven figures." > > (5)(b) > https://www.thedomains.com/2010/02/20/report-finds-against-icann-in-denying- > the-xxx-extension-charges-them-the-475k-cost/ > > "Yesterday an independent panel, the International Centre For Dispute > Resolution (pdf) found in a 80 page decision, in favor of the ICM Registry > against ICANN for its decision to eventually reject the .xxx extension and > ruled that ICANN had to pick up all the costs of the independent panel to > the tune of $475K and reimburse ICM the fees it paid for the application to > the tune of another $241K. (ICM is stuck for its own attorney fees)." > > (5)(c) > https://www.icann.org/en/system/files/files/-panel-declaration-19feb10-en.pd > f > > "Therefore, the administrative fees and expenses of the International Centre > for Dispute Resolution, totaling $4,500.00, shall be borne entirely by > ICANN, and the compensation and expenses of the Independent Review Panel, > totaling $473,744.91, shall be borne entirely by ICANN. ICANN shall > accordingly reimburse ICM Registry with the sum of $241,372.46, representing > that portion of said fees and expenses in excess of the apportioned costs > previously incurred by ICM Registry." > > (from the full ICDR decision, costs on page 70) > > [George's note:] ICANN paid nearly $500,000 just to cover the IRP panel fees > in the .xxx arbitration (not counting its own legal fees)! > There's no court in the world where the court fees would ever amount to such > a high level for such a case (because, as I've noted earlier, it's the > taxpayers who pay the salaries of judges in court, whereas in arbitration > it's the parties who pay those steep costs). > > Thus, while arbitration is presented as a solution to improve access to > justice, it'd actually have the exact opposite effect, *increasing* the > barriers to justice due to the prohibitive costs involved. > Contested intellectual property disputes are by their very nature complex > compared to other litigation, and the costs would accordingly be high for an > arbitration where the parties have to pay the hourly fees of panelists. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp >

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Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Paul Keating Nov. 22, 2017

Nov. 22, 2017

First I would like things to calm down here. Second, I want to address some comments by Phil indicating that having a rule that resulted in vitiating the UDRP decision if the IGO successfully sought dismissal on sovereign immunity grounds somehow treated them differently than other prevailing complainants in connection with post-UDRP litigation under 4(k). This is simply not what was, or continues to be, suggested. The rule is limited to the situation in which an IGO obtains dismissal as a result of a sovereign immunity claim. It does not vitiate the UDRP decision in any other instance (for example in the situation in which the court dismisses the litigation because tearer is no independent basis for a claim - e.g. The yoyo decision int ehUK). There appears to be a further myth that the Mutual Jurisdiction certification exposes them to judicial claims in connection with a 4(k) proceeding. This is simply not the case. As a case in point I refer to the attached case in which the following was stated: MARCHEX SALES, INC., v. TECNOLOGIA BANCARIA, S.A., IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Case 1:14-cv-01306-LO-JFA Document 17 Filed 05/21/15 > In filing its UDRP complaint, Tecnologia agreed that it would "submit, with > respect to > any challenges that may be made by the Respondent to a decision by the > Administrative Panel to > transfer the domain name that is the subject of this Complaint, to the > jurisdiction of the courts at > the location of the principal office of the concerned registrar." (Compl. ~ > 16). Plaintiff alleges > that this court has personal jurisdiction over the defendant because of this > agreement "to submit > to jurisdiction of the registrar in connection with a challenge of a UDRP > decision ordering a > transfer of the Domain Names." (Compl. ~ 3). > > While it is clear that the defendant has consented to the jurisdiction of this > court for the > purposes of challenging the WIPO panel's decision to transfer the subject > domain names in the > "Mutual Jurisdiction" clause of the UDRP complaint (Com pl. ~ 16), the relief > sought by the > plaintiff in the complaint before this court and in the motion for default > judgment goes far > beyond a "challenge" of the WIPO panel's decision. Plaintiff is not only > seeking a declaration > that its registration and use of the subject domain names is lawful and proper > and the domain > names should not be transferred to the defendant as ordered by the WIPO panel, > it is also seeking > an award of damages and attorney's and costs under the Lanham Act.3 > > As discussed during the hearing on May I, 2015, plaintiff has not alleged any > facts that > would support a finding of personal jurisdiction over this foreign defendant > for claims other than > a direct challenge to the WIPO panel's decision to transfer the domain names- > the only claim > that the defendant agreed to have litigated in this forum. To allow claims > other a challenge to > whether a domain name should be transferred in accordance with a WIPO decision > to be brought > against a complainant in a WIPO proceeding based on the mandatory provision > that the > complainant submit to jurisdiction of the courts at the location of the > principal registrar of the > domain name would greatly and unfairly expand the scope of the agreement and > the exposure > that any complainant could face by filing a UDRP complaint. > > The United States Supreme Court has consistently held that "a party can be > forced to > arbitrate only those issues it specifically agreed to submit to arbitration." > First Options of > Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995). The Fourth Circuit has also > recognized that > whether a party has agreed to arbitrate an issue is a matter of contract > interpretation and that a > party cannot be required to submit to arbitration any dispute which he has not > agreed so to > submit. Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, > 92 (4th Cir. > 1996) (quoting United Steelworkers of Am. v. Warrior Gulf Navigation Co., 363 > U.S. 574, 582 > (1960)). In a similar vein, the UDRP requires the parties to submit to > arbitration only claims > concerning the registration of a domain name and a party to a "mutual > jurisdiction" clause like > the one required in the UDRP complaint should not be forced to submit to the > jurisdiction of a > foreign forum for any claims that it has not agreed to submit. In the mutual > jurisdiction clause > relied on by the plaintiff, the agreement is limited to a challenge of a > decision to the transfer of > the domain name. It is not a broadly worded agreement whereby the complainant > agrees to a > specific jurisdiction for the resolution of all claims between the parties to > be litigated, or even an > agreement that all claims arising out of or related to the UDRP complaint to > be litigated in the > forum. The language is specific; it involves only a challenge to a panel's > decision to transfer a > domain name. To find that such a provision would subject a party to anything > more than a > challenge to the panel's decision would be unfair and would be inconsistent > with the due process > clause of the U.S. Constitution. While it was not required to address the > issue directly, in a > similar action the Fourth Circuit has recognized the argument made by a > defendant that a court > lacks jurisdiction regarding any cause of action other than the challenge to > the panel's decision in > the UDRP proceeding. Barcelona.com, 330 F.3d at 623. > > For these reasons, the undersigned magistrate judge recommends a finding that > the court > has subject matter jurisdiction over this action, that the court has > jurisdiction over only the claim > concerning the challenge to the WIPO panel's decision, and that venue is > proper in this court for > that claim. The court went on to disallow any damage claims - limiting its decision only to a transfer and award of costs. I continue to STRENUOUSLY oppose any creation of a special system for IGOs (or others) and incorporate my prior email on this subject which set forth the lack of any evidence of problem with the existing system. I believe no action is required as we set forth in the initial report. As the only compromise, I will only support a proposed change that incorporates the following within the UDRP which would be a part of the certification to be agreed to by the Complainant. If Complainant is an NGO, then Complainant further certifies and agrees In the event of any post-UDRP litigation brought by a respondent concerning the domain name > The NGO successfully seeks dismissal on the basis of sovereign immunity > And the litigation is dismissed as a result of the granting of the NGO¹s > motion to dismiss > The UDRP decision will be vitiated. Again, this applies in a very limited number of possible situations involving only NGOs and only then when the case is dismissed because the NGO asserted sovereign immunity. Paul Keating On 11/17/17, 8:26 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: > George: > > This co-chair categorically reject your reckless charge that I have engaged in > "fear-mongering". > > I regard that as a personal affront. You really should apologize. > > Please stick to the substance ands stop making reckless and unfounded > allegations about others' motivations. > > As for revelation of how any member voted on our preliminary consensus call, > those members who wish to reveal how they marked their ballots are free to do > so -- but we will not violate reasonable expectations of privacy, especially > when it now clear that support for Option C can expose one to reckless > charges. > > Philip > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf > Of George Kirikos > Sent: Friday, November 17, 2017 2:17 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal > poll constituting preliminary consensus call on Options A-C > > I think the comments within this survey are quite telling. Those who are in > favour of option A (and opposing option C) have very strong and fully > considered views, which they can explain and support with facts and reasoning. > Compare that to those expressing support for C (and opposing A/B). They make > statements like: > > "Fair and balanced" (supporting C) > "DOA at Council" (opposing A) > > bereft of credible reasoning. > > This demonstrates that it's fear-mongering by the co-chairs and political > motivations that led some to switch from Option 1 (now Option A) to Option C > (formerly Option 2), rather than anything based on new facts or new analysis. > Given this, it explains the refusal by the co-chairs to attach names to those > who are supporting Option C -- there's no expectation of privacy here --- > everyone must vote publicly when it comes down to a final consensus call, and > should have been able to publicly explain why they supported Option C in this > preliminary survey. > > In the book "Principles" by Ray Dalio that I'm reading, he writes about how > decisions at Bridgewater go through what's called "believability-weighted > decision making", see some discussion of that > at: > > http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 > > I think that is a wise approach, whereby votes that are backed by sound logic, > facts, experience, and reasoning should be weighted much higher than votes > that lack those attributes and which are instead fear-driven and thus are not > believable. > > It's been said that "One man with courage makes a majority." Hopefully it does > not have to come to that. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > > > > > > > > > > > > > > On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong(a)icann.org> wrote: >> Dear all, >> >> >> >> As noted on the Working Group call yesterday, please find attached the >> consolidated results of the informal poll that was conducted regarding >> Working Group member preferences as among Options A, B and C. >> >> >> >> Individual Working Group members especially those who provided >> specific comments as part of their poll response are invited to add >> any relevant background and further thoughts to this email. >> >> >> >> Thanks and cheers >> >> Mary >> >> >> _______________________________________________ >> Gnso-igo-ingo-crp mailing list >> Gnso-igo-ingo-crp(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Arbitration costs would be HIGHER than court costs
by George Kirikos Nov. 22, 2017

Nov. 22, 2017

Hi folks, I believe that the backers of Option #3 are incorrect to claim that arbitration would be less expensive than the courts. I provided some preliminary discussion of this imporant point at the end of a prior email at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000884.html "Costs -- it's naive to believe that costs would be lower in arbitration than in a judicial case, while trying to emulate the due process protections of a court. One need only look at a recent IRP that ICANN lost: http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reop… where the costs of the IRP itself (*not* counting lawyers fees of each party) amounted to $152,673. In real courts, the actual disbursement costs and filing fees are relatively low (hundreds of dollars, maybe thousands in a complex case), because the most substantial cost, namely the labour cost for the judge (their salary) is paid for by TAXPAYERS! Not so in an arbitration, where the parties themselves have to pay for the costs of the panelists (3 panelists, multiplied by hundreds of dollars per hour, multiplied by many hours adds up quickly)." but wanted to have a focused discussion just on this point. Here are some additional references to consider (I saved the best for last, since like the above it directly involved ICANN, so jump to the bottom if you'd like): (1) http://www.lawmemo.com/arb/res/cost.htm "Here, Public Citizen presents the first comprehensive collection of information on arbitration costs. We find: The cost to a plaintiff of initiating an arbitration is almost always higher than the cost of instituting a lawsuit. Our comparison of court fees to the fees charged by the three primary arbitration provider organizations demonstrates that forum costs- the costs charged by the tribunal that will decide the dispute- can be up to five thousand percent higher in arbitration than in court litigation. These costs have a deterrent effect, often preventing a claimant from even filing a case. Public Citizen's survey of costs finds that, for example, the forum fee for a $60,000 employment discrimination claim in the Circuit Court of Cook County, Illinois is $221. The forum fees for the same claim before the National Arbitration Forum (NAF) would be $10,925, 4,943% higher. An $80,000 consumer claim brought in Cook County would cost $221, versus $11,625 at NAF, a 5,260% difference. These high costs are not restricted to NAF; for the same $80,000 claim, the American Arbitration Association (AAA) would charge the plaintiff up to $6,650, and Judicial Arbitration and Mediation Services (JAMS) would charge up to $7,950, amounting to a 3,009% and 3,597% difference in cost, respectively." (2) https://m.mayerbrown.com/Files/News/04165fd5-5165-41ea-bb6f-19d9235c171d/Pr… "It is often said that arbitration is quicker and cheaper than litigation. However, arbitrations may in certain cases actually be more protracted and more expensive than litigation. There are numerous reasons for this, including: - the additional costs payable in arbitration which are not applicable in court proceedings. For example, the requirement to pay the arbitrators’ fees, any institutional administrative fees and to pay to hire the hearing venue - poorly drafted contracts with arbitration agreements which fail to provide an adequate and practical framework for the conduct of the arbitration proceedings - tribunals being unwilling to control the timetable and the parties’ conduct for fear of challenges to the subsequent award on the grounds of unfairness Disputed enforcement proceedings (although this is an area which various arbitral institutions are working hard to address, for example with the new ICC Rules)" (3) https://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/cost.p… "It is often thought that arbitrations are cheaper than court-based litigation, because people may agree on a streamlined procedure and avoid delays that may occur in the formal court process. However, an arbitration that is contested may turn out to be longer and more expensive than going directly to court. The parties may end up in court fighting about the arbitration as well as their original dispute." [George's note: Note, it's clear that for the case of an IGO dispute involving a domain name owner, where it already went to UDRP, already fought a battle re: "immunity", that it is a heavily contested case, so would very likely end up being more costly than court due to the payment of the arbitrators' fees (which are going to be triple in total due to the 3 person panel).] (4) http://thefirmdubai.com/new/publicationdetails/114 "It is submitted that one of the first things to consider should be the value of the contract and, more precisely, the amount that would be the subject of a claim if a potential dispute arises. This is important because arbitration costs and attorney fees for the same are usually much higher than court fees and attorney fees for litigating the case. Dubai courts (mainland courts) have a cap on their fees equivalent to AED 40,000 regardless of the value of the claim, while there is no cap for arbitration cases. By way of example, a claim with a value of AED 3 million before Dubai courts (mainland courts) would not involve more than AED 40,000 of court fees. However, the same-value arbitration would cost AED 130,000 before a single arbitrator, and three times this amount (roughly AED 350,000) if the contract provided for a three-arbitrator panel. Moreover, if you successfully obtained the award, you would have to pay an additional AED 40,000 by way of court fees to enforce the award. Furthermore, the number of panel arbitrators should be carefully considered because the fees of an arbitration panel of three arbitrators will be three times that of a sole arbitrator. Recently, a client, an international supplier of building materials instructed our firm to commence proceedings against a main contractor to claim an outstanding balance. Upon review of the supply contract, we discovered the presence of a UNCITRAL arbitration clause whereby any dispute was to be resolved through a panel of three arbitrators. When informed of the estimate of arbitration and attorney fees, the client’s representative refused vehemently to proceed down that route for economic reasons. In the words of the client’s representative, the fees were “exorbitant”. However, luckily, after the client submitted to us additional documents, we detected a loophole in the contract, which we used to avoid the arbitration agreement. Hence, the decision was taken to bring proceedings before the Dubai mainland court." [George's note: Of note, UNCITRAL rules have been brought up several times in this PDP as potential rules to follow, and the above is a clear example of parties to a dispute wanting to avoid their use because the costs would be "exorbitant".] (5)(a) http://domainincite.com/4580-icann-tries-to-dodge-jobs-legal-fees "ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain. ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures." (5)(b) https://www.thedomains.com/2010/02/20/report-finds-against-icann-in-denying… "Yesterday an independent panel, the International Centre For Dispute Resolution (pdf) found in a 80 page decision, in favor of the ICM Registry against ICANN for its decision to eventually reject the .xxx extension and ruled that ICANN had to pick up all the costs of the independent panel to the tune of $475K and reimburse ICM the fees it paid for the application to the tune of another $241K. (ICM is stuck for its own attorney fees)." (5)(c) https://www.icann.org/en/system/files/files/-panel-declaration-19feb10-en.p… "Therefore, the administrative fees and expenses of the International Centre for Dispute Resolution, totaling $4,500.00, shall be borne entirely by ICANN, and the compensation and expenses of the Independent Review Panel, totaling $473,744.91, shall be borne entirely by ICANN. ICANN shall accordingly reimburse ICM Registry with the sum of $241,372.46, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by ICM Registry." (from the full ICDR decision, costs on page 70) [George's note:] ICANN paid nearly $500,000 just to cover the IRP panel fees in the .xxx arbitration (not counting its own legal fees)! There's no court in the world where the court fees would ever amount to such a high level for such a case (because, as I've noted earlier, it's the taxpayers who pay the salaries of judges in court, whereas in arbitration it's the parties who pay those steep costs). Thus, while arbitration is presented as a solution to improve access to justice, it'd actually have the exact opposite effect, *increasing* the barriers to justice due to the prohibitive costs involved. Contested intellectual property disputes are by their very nature complex compared to other litigation, and the costs would accordingly be high for an arbitration where the parties have to pay the hourly fees of panelists. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Corwin, Philip Nov. 20, 2017

Nov. 20, 2017

George: This co-chair categorically reject your reckless charge that I have engaged in "fear-mongering". I regard that as a personal affront. You really should apologize. Please stick to the substance ands stop making reckless and unfounded allegations about others' motivations. As for revelation of how any member voted on our preliminary consensus call, those members who wish to reveal how they marked their ballots are free to do so -- but we will not violate reasonable expectations of privacy, especially when it now clear that support for Option C can expose one to reckless charges. Philip -----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Friday, November 17, 2017 2:17 PM To: gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong(a)icann.org> wrote: > Dear all, > > > > As noted on the Working Group call yesterday, please find attached the > consolidated results of the informal poll that was conducted regarding > Working Group member preferences as among Options A, B and C. > > > > Individual Working Group members – especially those who provided > specific comments as part of their poll response – are invited to add > any relevant background and further thoughts to this email. > > > > Thanks and cheers > > Mary > > > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
by George Kirikos Nov. 20, 2017

Nov. 20, 2017

That post makes absolutely no sense, and is inconsistent with the idea that we've even identified an issue at all that needs remediation. If, as Phil claims, we need to take 4(k) as is, then that argues for *not* implementing Option C (or Option 2 by the old numbering), because that would be singling out the IGO for a further round of arbitration, to their detriment. (as is, the dispute would be over, and the IGO would get the domain name; why subject them to a further procedure which they may lose? and even if the IGO won, they'd be spending more time and money to do it) I made a post on the RPM PDP mailing list yesterday that raises the very closely related issue of having the "de novo review" struck for lack of cause of action in some jurisdictions, see: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html which identified the root cause of the problem, namely that: "If there was no URS (or UDRP) policy in place what would be the "law" and the procedural path to justice? Clearly, a trademark holder would have a "cause of action" under trademark law against a domain name registrant. The TM holder would file a lawsuit (as plaintiff) against the domain name registrant (as defendant). With the URS (or UDRP), the procedural path to justice is altered in the event a TM holder uses it and is successful under the ADR. To challenge the outcome of the ADR, the domain name registrant now has the role of the plaintiff in court, and the TM holder is the defendant. The parties have switched their prior positions as plaintiffs and defendants, and it turns out that might cause a significant problem in some jurisdictions. i.e. it might make a difference which party to the dispute files in court as plaintiff in some jurisdictions." Where Phil is coming from, he's saying "Take the UDRP as given, and AFTER that procedure is applied, leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction." Whereas those of us who are convinced Option A (or Option 1 under the old numbering) is correct, we're saying "We do not take the UDRP as given! ICANN can't create a policy that interferes with the legal rights and defenses to national law in the first place. And the UDRP as written has already done that, caused that interference." If you actually believe what Phil is saying, then this PDP should be arguing for maintaining the status quo, i.e. don't change anything at all. That would be the only position that isn't hypocritical. But, this workgroup does not actually believe that --- because it's already said there is a scenario that had not been contemplated by the UDRP. It has identified a flaw that needs to be fixed, because of that "procedural path to justice" being changed as I noted above. We're not singling out IGOs --- the same issue needs to be fixed in the RPM PDP, where "de novo review" on the merits is blocked by the courts if the court action is brought by a domain name registrant in certain jurisdictions, due to false assumptions when the UDRP/URS were created that a cause of action even existed if the domain name registrant was the plaintiff (as opposed to being a defendant who did have a valid defense to a TM infringement action). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc(a)vlaw-dc.com> wrote: > These are personal comments and not directives or rulings from the Co-Chair. > > > The PDP Working Group is part of a policy process. After a WG delivers its > Final Report and Recommendations the process continues, with the output > requiring further approval of the GNSO Council and then the ICANN Board to > be effectuated (and with the Board possibly having to consider contrary, > consensus GAC advice when making its own determination). If those subsequent > approvals are not obtained the entire effort of the WG is for naught. It is > not "playing politics" for a WG to consider whether its final > recommendations will pass muster at the next stages of process review, and > policymaking is always the art of the possible and often requires pragmatic > compromise. > > > My own evolution in thinking on Option 1/A (and I don't believe I ever > expressed a preference for that over Option 2/C at the time our Initial > report was released) was in part based upon a further understanding that 4k > of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en > states: > > > k. Availability of Court Proceedings. 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. If an > Administrative Panel decides that your domain name registration should be > canceled or transferred, we will wait ten (10) business days (as observed in > the location of our principal office) after we are informed by the > applicable Provider of the Administrative Panel's decision before > implementing that decision. We will then implement the decision unless we > have received from you during that ten (10) business day period official > documentation (such as a copy of a complaint, file-stamped by the clerk of > the court) that you have commenced a lawsuit against the complainant in a > jurisdiction to which the complainant has submitted under Paragraph > 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is > either the location of our principal office or of your address as shown in > our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of > Procedure for details.) If we receive such documentation within the ten (10) > business day period, we will not implement the Administrative Panel's > decision, and we will take no further action, until we receive (i) evidence > satisfactory to us of a resolution between the parties; (ii) evidence > satisfactory to us that your lawsuit has been dismissed or withdrawn; or > (iii) a copy of an order from such court dismissing your lawsuit or ordering > that you do not have the right to continue to use your domain name. > (Emphasis added) > > > That language made clear to me that Option 1/A would single IGOs out for > disparate treatment in the UDRP in that, were any other Complainant > successful in having a registrant's lawsuit dismissed for any valid reason, > the stay on the implementation of the Administrative Panel's decision to > extinguish or transfer the domain would be lifted and the decision would be > effectuated; whereas that Option would state that for IGOs, and IGOs alone, > the decision would be vitiated. > > > My view is that for that disparate treatment alone the Council and Board > would be highly likely to reject a report and recommendations containing > such a policy recommendation. Additional reasons why I cannot support it > are: > > Such a recommendation is at odds with the WG Charter's charge that we ensure > that IGOs have effective access to CRP > The effect of the recommendation would be to penalize IGOs for effectively > asserting an immunity defense in judicial proceedings, as the result would > be to set aside a prior determination that the domain was being used to > facilitate cybersquatting (and yes, I know that in some instances UDRP > decisions are in error and are set aside on judicial appeal; but in the > great majority of cases the original panel decision is correct) and that > this result would likewise be unacceptable to Council and the Board. It > would also be inconsistent with the WG's prior determination that ICANN > should not interfere with the legal rights of either party to a UDRP, and > should leave judicial determinations to the courts. > The recommendation might well incentivize losing domain registrants to file > judicial appeal in a belief that an IGO - faced with the choice between > acquiescing to the court's jurisdiction, or asserting an immunity defense > the successful invocation of which would be penalized by panel determination > vitiation -- would choose to not participate in the adjudication and thereby > provide the registrant with a default judgment in its favor. > > > Please note that all these reasons (which I have articulated previously in > both oral and written form) are based on law, policy, and pragmatic > policymaking considerations and that none constitute "fear mongering". > > > The positive reasons why I personally support Option 2/C are that: > > It is consistent with the WG's determination to leave the determination of > legal rights and defenses to national law and courts of mutual jurisdiction. > It does nothing to improve or detract from an IGO's ability to successfully > assert and immunity defense. > It improves the position of domain registrants by assuring that in those > rare instances in which a court grants an IGO's immunity claim and dismisses > the judicial action they still will have an ability to secure a de novo > determination from an expert and impartial panel based upon the same > national law that was the basis for the judicial action. Under current UDRP > policy, the judicial dismissal would leave the registrant with no further > recourse for "appeal". > > > Finally, let me be clear that my views on this matter have never been > motivated by a desire to acquiesce to the GAC's. I believe that if Option > 2/C is included in our final report and if GAC members actually give a fair > reading to it they will conclude that this recommendation is based upon > reasoned principles that deserve GAC support. However, I have never favored > the consistent GAC position on this matter -- that we should create separate > CRP processes for IGOs in which domain registrants are deprived of an > opportunity to secure judicial review - as we have found no basis for IGOs > to secure standing for such actions other than trademark law, and because it > would be an abuse of ICANN's limited remit for it to attempt to deprive > registrants of existing legal rights based upon the type of Complainant > initiating a CRP action. > > > Best to all, > > Philip > > > > > Philip S. Corwin > > Founding Principal > > Virtualaw LLC > > 1155 F Street, NW > > 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 > > > > > > ________________________________ > From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of > George Kirikos <icann(a)leap.com> > Sent: Thursday, November 16, 2017 1:27 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working > Group meeting on Thursday 27 July > > Hi folks, > > On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> > wrote: >> I completely agree with Paul on this. These IGO names issues have been a >> political football for nearly five years now. The GAC is never going to get >> the GNSO to say what the GAC wants it to say -- we are not going to agree. >> The GAC has never proved any legitimate public interest concern to back >> their position. Accordingly, the IGO names policy was passed by a >> supermajority of the GNSO (as likely will be this latest policy >> recommendation) and that has implications in the Bylaws for the Board. The >> Board needs to make a decision. The GNSO need not be interested in >> politics, that is the Board and GAC's concern; we are interested in facts >> and real world policy. > > Yet, the backers of Option C within this PDP have *also* been playing > politics. It was pretty much established that Option 1 (now Option A) > had the backing of this PDP when the preliminary report went out > earlier this year, as I pointed out in today's call, based on all the > analysis of law and facts. What "new information" or "new facts" or > "new analysis" have been presented to get some members of this PDP to > shift to the old Option 2 (now Option C)? Absolutely none -- just > scaremongering about how the GNSO Council or others might react ---- > *that's* politics. There's nothing "principles based" about Option C > that has anything to do with facts or law. > > Politics were being played even *before* we got to this PDP. The prior > PDP should have just said "No more", but then they kicked the can down > the road (leading to this 3 years of work), which the IGOs themselves > have not participated in. > > I hope that folks regain their bearings before this PDP is over, and > really think hard about the fundamental principles that lead to policy > decisions (I've been reading Ray Dalio's new book "Principles" > lately). > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > Leap of Faith Financial Services Inc. > www.leap.com > Leap of Faith Financial Services Inc. is a privately held company based in > Toronto, Canada. > > > > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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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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