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Updated Public Comment Summary Table, and reminder of agenda for the meeting this week
by Mary Wong April 10, 2017

April 10, 2017

Dear all, Please find attached a slightly updated Public Comment Review Tool document – the only update/addition made was to add some notes at the beginning as to the number of comments submitted, and the number of as well as which IGOs signed up to the OECD and WIPO comments, among other such notes. On the call last week, it was also noted that the following will be discussed on the call this Thursday, which will also be a 90-minute call commencing at 1600 UTC: 1. Roll call/updates to Statements of Interest 2. Continue review of public comments received – specific focus on comments received from GNSO Stakeholder Groups & Constituencies (Registries, Registrars, BC, IPC) 3. [if time permits] Continue review of other public comments and the Review Tool 4. Next steps/next meeting As we are in the midst of a significant discussion that will eventually determine whether and how our initial recommendations may be amended as part of our Final Report, it will be greatly appreciated if all members can make an effort to join the call and/or provide thoughts and comments to this mailing list. Please let the Secretariat (gnso-secs(a)icann.org)<mailto:gnso-secs@icann.org)> know if you are unable to join the call. We will upload the latest Public Comment Review Tool and specific comments to the Working Group wiki soon. We have already done so for the meeting from last week. Thank you! Cheers Mary

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MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 06 April 2017
by Terri Agnew April 6, 2017

April 6, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 06 April 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-06apr17-en.mp3 AC Recording: <https://participate.icann.org/p7xck5bcvss/?OWASP_CSRFTOKEN=e3a2073779853843 886d55424ea456ee1ea5baaa166576b62ea40857bdfd81ad> https://participate.icann.org/p7xck5bcvss/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn so-2Dcrp-2Dpdp-2D13oct16-2Den.mp3&d=DQMF-g&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6s Jms7xcl4I5cM&r=8_WhWIPqsLT6TmF1Zmyci866vcPSFO4VShFqESGe_5iHWGlBLwwwehFBfjrsj Wv9&m=asM5JoG30Yqf49-Nims9k3McNfFtmzlAe1HmuXI6wic&s=0nZvoU1RqsjvPcNWDN_a2vVZ Dp9uXeyGO8NN2dN5h74&e=> 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: <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group -2Dactivities_calendar-23nov&d=DQMF-g&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7x cl4I5cM&r=8_WhWIPqsLT6TmF1Zmyci866vcPSFO4VShFqESGe_5iHWGlBLwwwehFBfjrsjWv9&m =wBBn3Ar2_mvUeGcM8rpOAyluUFEJFG5lASQ-cAccI2k&s=3BfiwO43tzwlrIbIyBY4Q-14zsFQC X518fLLR8GWR7I&e=> http://gnso.icann.org/en/group-activities/calendar Attendees: David Maher - RySG George Kirikos - Individual Jay Chapman - Individual Paul Tattersfield - Individual Petter Rindforth - IPC (co-chair) Phil Corwin - BC (co-chair) Mason Cole - RySG Apologies: Osvaldo Novoa - ISPCP ICANN staff: Mary Wong Steve Chan Dennis Chang Terri Agnew ** 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/NMfRAw Thank you. Kind regards, Terri ------------------------------- Adobe Connect chat transcript for Thursday, 06 April 2017 Michelle DeSmyter:Dear All, Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 06 April 2017 at 16:00 UTC. Michelle DeSmyter:Meeting wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_N MfRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ NMfRAw&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5 E&s=qO2QdwRLXEhp5AVUwlbKIZB_4R7P4wt8_OLc-hi7qMI&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=qO 2QdwRLXEhp5AVUwlbKIZB_4R7P4wt8_OLc-hi7qMI&e= George Kirikos:Hi folks. Steve Chan:Hi George, welcome George Kirikos:Hey Steve. How's it going? Steve Chan:All is well! I've got oatmeal and an IGO/INGO CRP meeting. George Kirikos:Yummy! George Kirikos:Welcome Petter. Petter Rindforth:The same! George Kirikos:First come, first served! :-) George Kirikos:If there was a Sunrise period for chairing, Petter would win. Paul Tattersfield:Hi Guys George Kirikos:Hey Paul. George Kirikos:Did the 90 minute meeting kill participation? Mary Wong:@Phil, @Petter - do you think we have quorum? Paul Tattersfield:I think its the weather it looks beautiful outsde here George George Kirikos:5 is a bit low. George Kirikos:Perhaps 8 would be a better number? George Kirikos:6. Mary Wong:OK, we will make sure to remind all WG members via the mailing list to review the recording, transcript and documents from today. George Kirikos:There's a bit of crackling on the line -- is that just me? Mary Wong:@George, I hear it too George Kirikos:It's hurting my brain. George Kirikos:GAC letter is at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00023.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00023.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=klnQZMDD ErwnvDa77GXHnk2H-8eIrJoKfZayzNJ51Ss&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=kl nQZMDDErwnvDa77GXHnk2H-8eIrJoKfZayzNJ51Ss&e= for those who want to read it outside the Adobe. Terri Agnew:Welcome Mason Cole Jay Chapman:I agree with you, Phil Jay Chapman:and Petter Mason Cole:Thanks Terri, sorry to be late. George Kirikos:Hi Mason. Mary Wong:We have the full comments from GAC, USG, OECD and WIPO ready to upload as well as the staff table and the slides from Copenhagen (which excerpts the GAC, USG, OECD and WIPO comments by recommendation). Just let us know which you'd like to see on screen. George Kirikos:Did we ever hear back from the IGOs re: further participation by them, as we conclude our work? George Kirikos:(i.e. we did try outreach, and it was suggested we continue that outreach) Mason Cole:To my memory, yes. George Kirikos:Disagree with that characterization by the GAC. It's just a more well-researched insight into standing, more than any individual UDRP/URS panelist could ever do, that is *consistent* with common law rights. George Kirikos:(and thus consistent with the UDRP, not an alteration of the UDRP) George Kirikos:You can't always get what you want But if you try sometimes you just might find You just might find You get what you need :-) Paul Tattersfield:Domain Name System should accommodate legitimate third-party co-existence is a new and important principle George Kirikos:There are other entities "most affected", i.e. registrants. Mary Wong:Shall we move to the USG comment? George Kirikos:WIPO's was shorter. George Kirikos:USG comment is at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00013.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00013.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=w-LgOchk aWP0uWQCkSQlRxsHRPLWxJR-CKiNSSSKpMA&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=w- LgOchkaWP0uWQCkSQlRxsHRPLWxJR-CKiNSSSKpMA&e= Mary Wong:Sorry for the delay, the wrong document had been uploaded previously! Paul Tattersfield:One after thought on the GAC comments I think we should make note of the GAC's comments that Domain Name System should accommodate legitimate third-party co-existence is a new and important principle George Kirikos:+1 Paul George Kirikos:It's informative that they concede that is not even a consensus on Article 6ter's interpretation amongst themselves. George Kirikos:*that there George Kirikos:Would love to know the list of "fake IGOs". George Kirikos:I wonder if they're objecting to some countries that have entries in the Article 6ter DB? George Kirikos:(i.e. they're countries, but not IGOs?) George Kirikos:e.g. a state emblem for "Canada" https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wipo.int_cgi-2D6te_i fetch5-3FENG-2BSIXTER-2B15-2D00-2B11520870-2DKEY-2B256-2B0-2B154-2BF-2DENG-2 B2-2B2-2B1-2B25-2BSEP-2D0_HITNUM-2CB-2Bcanada <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wipo.int_cgi-2D6te_ ifetch5-3FENG-2BSIXTER-2B15-2D00-2B11520870-2DKEY-2B256-2B0-2B154-2BF-2DENG- 2B2-2B2-2B1-2B25-2BSEP-2D0_HITNUM-2CB-2Bcanada&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3 mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=Tz rUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=cAf-UV-C3kz4N2upK6PKTP_yOER-bgbV UoEEyFvl6eQ&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=cA f-UV-C3kz4N2upK6PKTP_yOER-bgbVUoEEyFvl6eQ&e= George Kirikos:We can hear you. George Kirikos:Right, evidence of common law rights is what we've suggested all along, isn't it? George Kirikos:(strong evidence, even) Philip Corwin:IMHO, letting 6ter notification be used as evidence of common law TM rights would not convert it that notification in establishing a right. Mary Wong:@Phil, thanks - as mentioned, staff isn't advocating either way, just noting the need to flesh this out further in discussion George Kirikos:Are we done with the USG? George Kirikos:OECD is at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00002.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00002.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=s4VbfpdV afJEabO6DByN92-nr1ajD-QbM3Sj8cTVy48&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=s4 VbfpdVafJEabO6DByN92-nr1ajD-QbM3Sj8cTVy48&e= George Kirikos:Yes, they're happy with Article 6ter. George Kirikos:Since Article 6ter list is mostly a superset of the IGO small group standing. Mary Wong:I suppose 6ter is international law, so that's the agreement? George Kirikos:That's hilarious, see: https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wipo.int_article6ter _en_legal-5Ftexts_article-5F6ter.html <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wipo.int_article6te r_en_legal-5Ftexts_article-5F6ter.html&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkb PSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGu ntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=nCthNZWR9pmjZf6X6MHirkzWNj-uGM5qOjGp4hDl kCo&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=nC thNZWR9pmjZf6X6MHirkzWNj-uGM5qOjGp4hDlkCo&e= George Kirikos:They can't cherry pick the parts of the treaty they like. George Kirikos:It's not really new. But, it's not a major issue. The question is whether you can *compel* someone to agree to arbitration. George Kirikos:WIPO's comments at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00000.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00000.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=LevahhO4 U-qkvy8aMPfHJ41sfm2KZlBCI_ab3qqMp8Y&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=Le vahhO4U-qkvy8aMPfHJ41sfm2KZlBCI_ab3qqMp8Y&e= George Kirikos:Maybe we should peruse Mary's summary document, too, to get familiar with it, before we dig into other comments later? George Kirikos:Paul had a good comment re: the NY Times article WIPO mentioned. Mary Wong:@George, it's Mary & Steve's joint production (but I take responsibility for the awful formatting due to a bad initial template)! George Kirikos:See Paul's comment at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00038.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00038.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=Rk_Btgk5 1vzuXd_VdDQ7DL7vOeWpEr4O9_z07E8TmIk&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=Rk _Btgk51vzuXd_VdDQ7DL7vOeWpEr4O9_z07E8TmIk&e= George Kirikos:Desire, not need. George Kirikos:It was a pretty weak letter, compared to the OECD one. Paul Tattersfield:recognition of co-existence principles is new from WIPO George Kirikos:Probably WIPO is the organizer of the IGOs' efforts, so they defer to them, rather than engaging in independent analysis. George Kirikos:There was something new in the footnote on page 2, suggesting that there was "capture" by [registration] parties. George Kirikos:Which is odd, coming from a group that negotiated secretly with the GAC. Paul Tattersfield:Thanks Mary that would be helpful George Kirikos:NAF didn't file anything. Mary Wong:When our group comes to discuss the separate DRP point, it may be useful to engage with the providers at that point, including NAF. George Kirikos:I lost my connection. George Kirikos:Calling back. Terri Agnew:@George, also alerting op George Kirikos:I'm back. Terri Agnew:welcome back George George Kirikos:Can I finish my earlier comment? George Kirikos:(I got cut off) George Kirikos:lol Paul Tattersfield:naughty George Kirikos:Which https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_&d=DwIFaQ&c=FmY1u3P Jp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4 xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=cfWwc3-J2AInCH8-HDccz om_iOQajyG2PLfnZU-J75g&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=cf Wwc3-J2AInCH8-HDcczom_iOQajyG2PLfnZU-J75g&e= George Kirikos:MIGA is also World Bank. George Kirikos:Wait a sec? There's another World Bank comment too: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00033.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00033.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=oPRpFaFX xUk0snkDvWT7DJq6G073sTXI1J-rXuJP5eI&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=oP RpFaFXxUk0snkDvWT7DJq6G073sTXI1J-rXuJP5eI&e= George Kirikos:Oops, I guess that's the same comment. Mary Wong:@George, MIGA is an agency of the World Bank. George Kirikos:Right, Mary. George Kirikos:So we're looking at: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_c omments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00033.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_ comments-2Digo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D20jan17_msg00033.html&d=DwI FaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar 9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=oPRpFaFX xUk0snkDvWT7DJq6G073sTXI1J-rXuJP5eI&e> &d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=TzrUf25YGuntVxSRK1aTNWz9K32sPy9MfC9E04T3y5E&s=oP RpFaFXxUk0snkDvWT7DJq6G073sTXI1J-rXuJP5eI&e= Mary Wong:Yes, I believe so. George Kirikos:It's an odd comment, given that the World Bank actually USED the UDRP successfullly. Mary Wong:It may be a misunderstanding of our recommendation about 6ter? George Kirikos:It may even be a misunderstanding of the UDRP itself, Mary, as Petter mentioned. George Kirikos:Lack of institutional memory, given World Bank used the UDRP and won. George Kirikos:(probably from someone new, who wasn't aware of the World Bank's past UDRP success) Petter Rindforth:Rather a misunderstanding of the UDRP. Local protection is only needed for ccDRPs George Kirikos:"The World Bank admits that the privileges and immunities of IGOs are not a simple topic." LOL About deference to IGOs. Mary Wong:@Phil, that is correct (re Board request to the GNSO on Small Group Proposal) George Kirikos:They seem unfamiliar with the multistakeholder process. George Kirikos:Assignment has already worked. George Kirikos:UNITAID case. George Kirikos:"For one thing, the assignment may well be rejected by the UDRP or a court." FALSE, given it has already worked. Mary Wong:@Phil, staff presumes they were talking about waiving immunity when responding to a UDRP complaint filed by someone else George Kirikos:+1 Phil. George Kirikos:Legal principles are robust enough to handle new technology. George Kirikos:Staff Table is also at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20170405/2235865 2/PublicCommentReviewTool-InitialReport-4April2017-0001.pdf Mary Wong:Yes and yes, Phil George Kirikos:Very productive call today! Paul Tattersfield:Agree George George Kirikos:Well done by Phil and Petter on keeping us on track. Petter Rindforth:It's possible thanks to Staff and active WG members George Kirikos:Maybe we should move the NOTES in Adobe to the left, so we can have a wider area for the document next week? George Kirikos:(since the tables are so wide) George Kirikos:(i.e. to rearrange the pods) Mary Wong:@George, we'll see what IT will allow us to do George Kirikos:Oh, ok. I thought that it was something that staff had control over, easily. (not sure what your interface is) Jay Chapman:Agree - excellent progress Mary Wong:@George, we have this thing about consistency of tools across the org :) George Kirikos:Bye everyone! Jay Chapman:thanks, all Paul Tattersfield:thanks all bye Mary Wong:Thanks everybody!

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Initial draft for review: Public Comment Review Tool
by Mary Wong April 6, 2017

April 6, 2017

Dear Working Group members, Please find attached an initial draft of the tabular Public Comment Review Tool that was mentioned on our last call. This is basically a tabular summary prepared by staff of all the public comments received on our Initial Report, organized according to Recommendation number corresponding to the specific recommendation in the Report (with additional sections for General and Other Comments). As the document is rather long, we attach the PDF format here but please let me know if you’d prefer to receive the Word version – staff will also post them to the Working Group wiki space. Some numbers that may be of interest: · We received a total of 46 comments (including several from one individual commentator (Mr Richard Hill, who participated in the Working Group’s open session at ICANN58), a few individual Working Group members, one ICANN Advisory Committee (GAC) and four GNSO Stakeholder Groups/Constituencies (the Registries and Registrars Stakeholder Groups, the Business Constituency and the Intellectual Property Constituency). · Well over a dozen IGOs submitted comments, and a substantial number also signed on to the comments submitted by WIPO (10) and the OECD (15). Please also note the following caveats regarding the attached table: · This table was prepared to assist with your review of the comments received but does not replace or supersede the actual reading of the complete comments. · Where we judged it to be helpful, we have excerpted specific text from a comment in the table for clarity or context, and also provided a link to the specific comment so that you can read it in full. · In some excerpts, we have shortened or summarized certain language in the comment – this is indicated by square brackets around the relevant word or phrase. · As we are dealing with a relatively new format (typically, staff prepares a similar table for all PDP Working Groups), some of the formatting came out strangely. We will try to fix these problems, but in the interests of time we thought it best to get this rough version out to you as soon as we could. Finally, as noted on the Working Group call last week, for this Thursday we will plan on meeting for 90 minutes, and, following a brief opportunity to close out on the GAC’s comments (continued from last week), we will proceed to discuss the comments that were received from the OECD, WIPO and the US Government. You can find these comments here: · WIPO - https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… · OECD - https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… · US Government - https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… Thanks and cheers Mary Mary Wong Senior Policy Director & Special Adviser for Strategic Policy Planning Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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Message from the Co-Chairs
by Phil Corwin April 6, 2017

April 6, 2017

Dear WG Members: As we enter the phase of reviewing comments on our Initial report and Recommendations, the Co-Chairs wish to share their views as to how this WG should proceed to best ensure that our final work proceeds in an expeditious and comprehensive fashion. Subject to acceptance by the WG members, we propose the following--- * All WG sessions will be of 90 minutes' duration until further notice in order to best facilitate our goal of delivering a Final Report in advance of the ICANN 59 meeting taking place in Johannesburg in late June (we envision that the comment period will likely still be open during that meeting, and that a meeting session(s) can be utilized to explain and answer questions about that Report). * All comments having original content will receive an initial review (comments that simply endorse the filing of another party will not be reviewed, but that support will be noted in staff prepared documents summarizing the content of all comments). That initial review will not include substantive debate as to whether a comment requires some adjustment of our Initial Report. Rather, we will note all new material and/or arguments contained in all comments, and then will consolidate all duplicative material and arguments for detailed consideration in subsequent deliberations of the WG. * The WG will not spend time reconsidering materials and arguments that were already received and debated during the phase of our work preceding issuance of the Initial Report. Rather, we will focus on new assertions of fact and law as well as critiques of the Initial Report that raise issues not previously considered. * Given the complex legal and policy issues under discussion as well as the controversial aspects of this debate within ICANN, the Co-Chairs believe that it is very important that our Final Report list all new facts and legal arguments brought to our attention by the public comments and document the reasons why the WG accepted them and made commensurate adjustments, or rejected them and left initial recommendations intact. Thank you for your consideration of our thoughts on how we should proceed toward completion of our work. We welcome your feedback on our upcoming call today and on this email list. Best regards, Philip and Petter Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey

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UPDATED MP3, Attendance & AC Chat for IGO-INGO CRP PDP WG call on Thursday, 30 March 2017
by Michelle DeSmyter March 31, 2017

March 31, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 30 March 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3 <http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3> AC Recording: https://participate.icann.org/p1om4k12bxb/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> On page: https://gnso.icann.org/en/group-activities/calendar#mar 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: David Maher – RySG George Kirikos – Individual Jay Chapman – Individual Lori Schulman - IPC Paul Keating - NCUC Paul Tattersfield – Individual Petter Rindforth – IPC (co-chair) Phil Corwin – BC Apologies: ICANN staff: Mary Wong 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 page: https://community.icann.org/x/B8TRAw Thank you. Kind regards, Michelle DeSmyter ------------------------------- Adobe Connect chat transcript for Thursday, 30 March 2017 Michelle DeSmyter 2:Dear All, Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 30 March 2017 at 16:00 UTC. Michelle DeSmyter 2:Meeting page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Petter Rindforth:Hi there! George Kirikos:Hi Petter. How are you today? Petter Rindforth:Busy day, and still snow in Stockholm :-) George Kirikos:A little bit of snow can be nice! George Kirikos:But, too much is awful. Dennis Chang:Loved Stockholm in snow last week. Beautiful! George Kirikos:Where do you reside, Dennis? (I'm in Toronto, so we get 4 proper seasons, including snow in winter) :-) Dennis Chang:Los Angeles. Visited Stockholm on my way back from Copenhagan. George Kirikos:Nice....I guess it's sunny all year, for you. Dennis Chang:let's see. 22 degrees Sunny. today. George Kirikos:Maybe blast out an email reminder? Mary Wong:@George, will do Paul Tattersfield:Hello everyone George Kirikos:Welcome, Paul. Lori Schulman:Hi' Lori Schulman:No sound on phone George Kirikos:Hi Lori. George Kirikos:No one's talking at the moment. :-) Paul Tattersfield:Hi George, did you follow the football? - You were very unlucky in the last minute Lori Schulman:Now I have sound. George Kirikos:Echo, echo. George Kirikos:Someone needs to mute (*6 to mute/unmute). George Kirikos:I don't know how it compares to other working groups, but overall we've had pretty good attendance from the "core" group members: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Mary Wong:The Working Group co-chairs have the discretion to reschedule a call if they don't believe a sufficient quorum has been reached. George Kirikos:Jay Chapman and Paul Keating are often here....maybe just running a little late. Mary Wong:We have 35 as of today Paul Tattersfield:I'm planing on submitting comments shortly - I just need to tidy the footnotes George Kirikos:Up to 36 now, actually. George Kirikos:https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-… Mary Wong:Oops, thanks George George Kirikos:Some changes to the recommendations might not be necessary -- might need more elaboration/explanation, though, to enhance the final document. Paul Tattersfield:about 6 me too comments Jay Chapman:Forgive my tardiness...hello everyone George Kirikos:Welcome Jay. Jay Chapman:hi George Lori Schulman:That is an important acknowledgement by IGOs George Kirikos:Is the GAC saying that the "claims notice" should apply to just new gTLDs (i.e. via the TMCH), or would they want it to apply to legacy gTLDs like com/net/org ? Mary Wong:@George, I believe the GAC advice has consistently been for new gTLDs (and for future rounds). However, the original PDP - and hence ours - covers both legacy and new gTLDs. George Kirikos:Right, thanks Mary. George Kirikos:At least 1 IGO (namely WIPO) is actively involved in the other working group (dealing with UDRP/URS reform, once we get there). George Kirikos:reform/review, even George Kirikos:The list ICANN/GAC created was arbitrary. Mary Wong:It was based on the .int criteria George Kirikos:.INT says "Only one registration is allowed for each organization", see: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.iana.org_domains_i… George Kirikos:Yes, the ICANN reserved list for IGOs have multiple reserved strings for some (many) organizations. At least the Article 6ter database is transparent/open. George Kirikos:Yes=Yet George Kirikos:Some of the governments (USA) suggested some organizations claim to be "IGOs", but aren't real IGOs!! (she didn't say which ones are fake, though!) Jay Chapman:exactly Phil Paul Tattersfield:would it be possible to get a list of those organizations George? George Kirikos:Even under UDRP, TM rights are territorial. So, a Belgium TM isn't recognized by Canada, but a Belgium TM holder can file a UDRP against a Canadian domain name owner. George Kirikos:@Paul: she didn't identify which ones she was talking about. George Kirikos:For the "facilitate continued discussions", are the IGOs going to participate in this WG more than they have to date? Lori Schulman:IGO participation would be very welcome Lori Schulman:The absence of the IGO's has hindered the work IMHO Philip Corwin:@Lori--I wouldn't hold your breath ;-) George Kirikos:Agreed, Lori. We also had 1 GAC member in this IGO (the gentleman from Jamaica). George Kirikos:It looks like he's become just an Observer now, though (Gary Campbell): https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… Lori Schulman:I know, no breath holding...but I have emphasized this point at every opportunity Lori Schulman:If IGO's are not here then my organization is not open to my spending too much more time on this Mary Wong:At this stage in our work, perhaps we can consider the many public comments submitted (including the +1s) as a form of participation. Philip Corwin:If ICANN had a sargent-at-arms we culd compel their participation ;-) George Kirikos:The organizations can still rely on their common law rights, though (i.e. their names), even if not registered in the Article 6ter database. George Kirikos:Standing is such an easy test to meet. Lori Schulman:Its actually not so easy George Kirikos:LOL Phil George Kirikos:For the UDRP, I mean, Lori (not court-level standing). First prong of the UDRP/URS is often called the "standing" test. 99% of the time, that test is passed. Lori Schulman:that is what we have been grappling with...using a trademark system for adjudicating rights that may not be legally recognized as trademark rigths Paul Tattersfield:@George its evideencing the non registered rights that makes the work George Kirikos:Their same position since 2002, Phil. Lori Schulman:Got it, George Lori Schulman:Not all jurisdictions recognize common law rights PAUL KEATING:Sorry for being late. George Kirikos:True, Lori. But, for the UDRP, most panelists aren't sticklers for that level of detail. :-) They care more about the "bad faith" parts of the test. PAUL KEATING:@Lori, however the UDRP panels traditionally DO recognize common law trademarks. Lori Schulman:Paul K: Are they doing that for non commonlaw countries? Mary Wong:@Phil, IGO full names will be reserved at the second level - that was a PDP recommendation adopted by the ICANN Board (currently in implementation). Lori Schulman:It's been years since I have handled UDRP work George Kirikos:France is civil law, right? I'm sure we can find a French complainant that relied upon a common law right, i.e. unregistered rights. Lori Schulman:Yes, France is civil law. PAUL KEATING:in teh UDRP context it is sufficient to show rights that would supprot a passing off cliam. That is a far lower standard. Lori Schulman:Common Law are former UK colonies; US, Canada, Australia, NZ, etc Paul Tattersfield:@Lori does that matter? Are non common law systems specifically excluded? Lori Schulman:I don't know. My understanding is that common law rights are only recognized in Common Law jurisdictions George Kirikos:I found a case, Lori. George Kirikos:http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-2024 George Kirikos:Does the fact that unregistered trademarks are not recognised as such in France mean that French entities are to be disadvantaged as against entities based in common law countries such as the UK or in civil law countries such as Germany where unregistered trademarks are recognised by statute? The Panel does not think so. George Kirikos:(and so on) :-) Lori Schulman:Of course you did. You missed your calling, George. Librarian extraordinaire. PAUL KEATING:@Phil, are we going to give notice to everyone now? George Kirikos:hehe :-) When I've had litigation, I've helped my own lawyers in finding good precedents that they didn't find. Mary Wong:@George, @Lori - it may be more appropriate to speak of "registered" and "unregistered" trademarks rather than "common law rights" for the latter. Paul Tattersfield:Thanks George that is useful George Kirikos:Yes, Mary. Lori Schulman:Thanks Mary, agree. Mary Wong:Regardless, though, the problem Lori noted remains with the UDRP/URS - even unregistered trademarks rely on the Complainant having some form of trademark-type rights. Petter Rindforth:Compare with .eu ADR: The Complaint shall specify the names in respect of which a right is recognized or established by the national law of a Member State and/or Community law. For each such name, describe exactly the type of right(s) claimed, specify the law or law(s) as well as the conditions under which the right is recognized and/or established. In other words: can be any kind of protected name right in any member state. Mary Wong:@Petter, yes, so a dispute resolution procedure can conceivably be broader than just trademark rights (registered or otherwise). George Kirikos:By George :-) George Kirikos:I think it might have been Bruce Tonkin who gave the WHO Magazine thought experiment. George Kirikos:Immunity is a defence to an action. It doesn't apply when they're the initiator of the dispute. George Kirikos:+1 Paul Keating Paul Tattersfield:exactly they are seeking to use UDRP or URS as a sword to seize assets from third parties as opposed to using UDRP or URS to defend their own assets George Kirikos:We need to methodically do the work, though, to dot all the i's and cross all the t's. Lori Schulman:Please remember that the sword is against bad actors. George Kirikos:Alleged bad actors. Even bad actors deserve due process. Lori Schulman:We are not denying due process. George Kirikos:If it was so easy to identify "bad actors", we need not even have courts. :-) George Kirikos:36 George Kirikos:37 now. Paul Tattersfield:Agrreed Lori , however there are better mechanisms than UDRP/URS that can be used for 99% of the bad actors Lori Schulman:And BTW, there is a case law that says that ADR offers due process. I don't agree with the assumption that only courts provide due process. George Kirikos:WHO just submitted a "me too" comment. Lori Schulman:that makes me laugh Lori Schulman:WIPO comments were quite different from GAS, UNESCO, USG comments Lori Schulman:I meant GAC. Freudian slip. Mary Wong:GNSO Council has to approve before it goes to the Board George Kirikos:ADR can be beneficial, but only if both sides consent to it. IGOs want to compel others into a binding process that they've designed --- that's forum shopping. PAUL KEATING:ok Petter Rindforth:@Lori - if we talk about WIPO - a number of other IGO's simply replied supporting WIPO's comments George Kirikos:Here's the GAC comment: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_… George Kirikos:It's 2 pages long. George Kirikos:That's it. George Kirikos:Oops, 3 pages, even. Paul Tattersfield:other entities with the same anacrnyms George Kirikos:That 3rd parties can use the same acronyms, as long as it's non-infringing. Mary Wong:+1 George Lori Schulman:I took it to mean that way Phil described. Can we ask the GAC to clarify? George Kirikos:But, the IGOs shouldn't be the ones to be determining who is "legitimate", and who is not. e.g. a free speech site criticizing IGOs is protected in the USA, Canada, and other countries. Mary Wong:@Lori, the WG can request the GNSO Council to include that as a clarifying question in its review of the GAC Communique that is sent to the Board. A draft is being prepared for the Council's 20 April meeting. George Kirikos:But, IGOs might say "that's not legitimate." Lori Schulman:I would just like to understand precisely what they mean. Lori Schulman:I am not in favor of rushing though comments. Paul Tattersfield:I agree Lori Lori Schulman:I think that the standing would be worked out if there were a separate DRP Lori Schulman:It might be supplying evidence of the organizing treaty George Kirikos:But, a separate DRP, not grounded in any law, would be creation of brand new law. George Kirikos:i.e. what is the underlying "legal dispute" that the new curative process for IGOs is attempting to address? Mary Wong:@George, in 2007 a separate DRP was drafted for consideration that was based on 6ter. George Kirikos:Right, Mary. But, under Article 6ter, it's NATIONS who are ones with the treaty obligations. George Kirikos:So, that means it would be the Government of Canada, Government of USA, etc. who would be the complainants. George Kirikos:But, we know from the State Department letter for UNIFEM that they said that IGOs should file a TM lawsuit, to enforce rights. George Kirikos:That availability of the courts fulfilled their obligations. George Kirikos:i.e. those were trademark rights, just like the UDRP. George Kirikos:Here was the UNIFEM stuff: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.state.gov_s_l_3864… George Kirikos:". But, as noted in the preceding paragraph, the latter obligation would be met under the laws of general application that the United States has enacted, and it is the responsibility of the party claiming than an infringement has occurred to take action under U.S. law to challenge perceived unlawful use in commerce." George Kirikos:Also, "For example, the Trademark Act of 1946, as amended, 15 U.S.C. u 1051 et seq., offers the possibility for interested parties to challenge use of marks in commerce based on theories, inter alia, of likelihood of confusion, false association and unfair competition. These laws satisfy U.S. obligations under article 6ter by providing the opportunity for States and international intergovernmental organizations to pursue remedies for the unauthorized use of names and other insignia listed in article 6ter, including in cases involving use on the INTERNET. Responsibility for evaluating potentially infringing use of trademarks and other intellectual property, and for taking enforcement action when deemed appropriate, however, rests with the party whose interests are affected." Mary Wong:We will send around the draft procedure Petter and I mentioned to the WG by email.. George Kirikos:So, that letter is disagreeing with the notion that they're in a unique category. Mary Wong:@George, that may be one reason why the USG filed a public comment for our Initial Report - a concern that TM rights not be unduly expanded? George Kirikos:I'm not sure, Mary. I actually wrote an email to the USG person who authored their position, for my own personaly research, to try to get some explanations on their reasoning, but none was forthcoming. George Kirikos:*personaly = personal Paul Tattersfield:exactly George Kirikos:Policy Guidance is comparable to the WIPO overview -- an independent review of standing, through very thorough background research, more than any individual panelist could afford to do on a simple case. Mary Wong:@Lori, not from ICANN, no. George Kirikos:Not from ICANN, Lori. But, WIPO has their Overview of Selected Questions. George Kirikos:I'm not sure if NAF has any independent training manuals that are similar. PAUL KEATING:@Lori, there is a "policy" which is the Panel Index 2.0 at WIPO Mary Wong:It seems to staff that the main objection to Policy Guidance is that it merely interprets - and doesn't expand or amend - the existing UDRP grounds. Mary Wong:The objection being, when it DOES, then it is not appropriate for Policy Guidance. Petter Rindforth:I presume that at least the most well-known IGO's can claim unregistered but well-known trademark rights for their names (connected to some services) Petter Rindforth:...without having to refer to Article 6ter Mary Wong:@Lori, that is indeed one of the USG concerns. George Kirikos:+1 Paul Keating Mary Wong:@Paul K, yes, that was one of the problems highlighted during the GAC-GNSO discussions - that communication under 6ter does NOT go through any examination by WIPO. And the USG pointed out that only some countries do any further examination. George Kirikos:6ter might be like unreviewed Benelux TMs. But, there are 2 other prongs to the UDRP, so losing the first rarely matters. Lori Schulman:USPTO does "examine" 6 ter notices before they hit the register Mary Wong:@George, losing under the first ground pretty much ends the Complaint. George Kirikos:Almost always, it comes down to the 3rd prong (bad faith), and occasionaly the 2nd prong. George Kirikos:Yes, Mary. But, it's rarely ever determinative, is my point. George Kirikos:99% of the time, the first prong is met. Mary Wong:And that is one of the criticisms of it :) George Kirikos:It's not like the IGO is going to bring up the mark "UNESCO", for a dispute over "BABIES.com". Lori Schulman:Got it Paul K. George Kirikos:It has to have some resemblance to the domain under dispute, that's all. Paul Tattersfield:Agree Paul so well put Lori Schulman:I like the idea of 6ter as an element to prove standing not the sole basis George Kirikos:The ones who want the "strict" interpretation of Article 6tter want the most liberal rules for everything else, ironically. George Kirikos:(i.e. creating a brand new binding arbitration has no basis in law whatsoever, if they want to stricly interpret things) George Kirikos:Some of the constituencies will hopefully comment by the end of today. Lori Schulman:IPC will George Kirikos:It might take 2 or 3 calls. We need to be systematic. Mary Wong:Thanks, Phil - that gives us a bit more breathing room to complete the staff summary! George Kirikos:We can perhaps continue on the list, for some things. Lori Schulman:I like the idea of relying more on the list Lori Schulman:I am saturated with ICANN calls like many others George Kirikos:Yes, 90 mins for the RPM on Wednesdays, and 90 mins for IGOs on Thursdays is a kiiller combo. Petter Rindforth:I think it is easy to go throgh all comments on a summarized base Lori Schulman:my head hurts, literally, from the headphones George Kirikos:Are you in a big office, Lori? Lori Schulman:no, I am at home most of the time George Kirikos:(I have it on speakerphone, but muted, then I switch to the handset when speaking) Mary Wong:The WG has a responsibility to review all comments - though of course that means that all WG members are presumed to have done so; for the actual calls, the WG can elect to focus only on some. Lori Schulman:but I have people and activities around me PAUL KEATING:i surrender Lori Schulman:Mary, right, we have to review all comments Lori Schulman:But I like Paul's question: How does this affect the report? Jay Chapman:thanks, all Lori Schulman:We should ask it for every one, George Kirikos:So, are we going to do outreach to the IGOs one more time? Lori Schulman:bye George Kirikos:(i.e. the facilitated discussion?) Paul Tattersfield:thanks all bye PAUL KEATING:thank you all. Have great days Petter Rindforth:Is there anything else than ICANN in this world? George Kirikos:Bye folks.

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FOR REVIEW/ACTION: Follow up from Working Group call today
by Mary Wong March 30, 2017

March 30, 2017

Dear all, As requested on the Working Group call held earlier today, please find attached a copy of the draft text that had been prepared in 2007 for a possible alternative dispute resolution procedure for IGOs, based on Article 6ter of the Paris Convention, for your review and further discussion. Also as noted on the call, for next week we will continue with the review of comments submitted by the GAC (briefly, since we covered this substantially on the call today), WIPO, OECD and the US Government. Following from suggestions made on the call today, as you review these – and all other public comments submitted – you may wish to consider them in the context of the following questions: · Does this add new/further information to the Working Group’s deliberations? · How should this comment affect the Working Group’s thinking as to our initial recommendations, e.g. do they need to be clarified or amended for the Final Report in view of this input? Finally, staff will send around a table excerpting and categorizing all public comments received as of our closing date (31 March) early next week. We hope the document will assist in the Working Group’s review of input received, and we note specifically that the group is expected to have considered all comments, for which reviewing the full comments is likely to be helpful. You can find all comments submitted here: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/ Thanks and cheers Mary

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UPDATED Attendance, Mp3, AC Chat & AC recording for IGO-INGO Curative Rights Protection PDP WG call
by Michelle DeSmyter March 30, 2017

March 30, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 30 March 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3 <http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3> AC Recording: https://participate.icann.org/p1om4k12bxb/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> On page: https://gnso.icann.org/en/group-activities/calendar#mar 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: David Maher – RySG George Kirikos – Individual Jay Chapman – Individual Lori Schulman - IPC Paul Keating - NCUC Paul Tattersfield – Individual Phil Corwin – BC Apologies: ICANN staff: Mary Wong 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 page: https://community.icann.org/x/B8TRAw Thank you. Kind regards, Michelle DeSmyter ------------------------------- Adobe Connect chat transcript for Thursday, 30 March 2017 Michelle DeSmyter 2:Dear All, Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 30 March 2017 at 16:00 UTC. Michelle DeSmyter 2:Meeting page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Petter Rindforth:Hi there! George Kirikos:Hi Petter. How are you today? Petter Rindforth:Busy day, and still snow in Stockholm :-) George Kirikos:A little bit of snow can be nice! George Kirikos:But, too much is awful. Dennis Chang:Loved Stockholm in snow last week. Beautiful! George Kirikos:Where do you reside, Dennis? (I'm in Toronto, so we get 4 proper seasons, including snow in winter) :-) Dennis Chang:Los Angeles. Visited Stockholm on my way back from Copenhagan. George Kirikos:Nice....I guess it's sunny all year, for you. Dennis Chang:let's see. 22 degrees Sunny. today. George Kirikos:Maybe blast out an email reminder? Mary Wong:@George, will do Paul Tattersfield:Hello everyone George Kirikos:Welcome, Paul. Lori Schulman:Hi' Lori Schulman:No sound on phone George Kirikos:Hi Lori. George Kirikos:No one's talking at the moment. :-) Paul Tattersfield:Hi George, did you follow the football? - You were very unlucky in the last minute Lori Schulman:Now I have sound. George Kirikos:Echo, echo. George Kirikos:Someone needs to mute (*6 to mute/unmute). George Kirikos:I don't know how it compares to other working groups, but overall we've had pretty good attendance from the "core" group members: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Mary Wong:The Working Group co-chairs have the discretion to reschedule a call if they don't believe a sufficient quorum has been reached. George Kirikos:Jay Chapman and Paul Keating are often here....maybe just running a little late. Mary Wong:We have 35 as of today Paul Tattersfield:I'm planing on submitting comments shortly - I just need to tidy the footnotes George Kirikos:Up to 36 now, actually. George Kirikos:https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-… Mary Wong:Oops, thanks George George Kirikos:Some changes to the recommendations might not be necessary -- might need more elaboration/explanation, though, to enhance the final document. Paul Tattersfield:about 6 me too comments Jay Chapman:Forgive my tardiness...hello everyone George Kirikos:Welcome Jay. Jay Chapman:hi George Lori Schulman:That is an important acknowledgement by IGOs George Kirikos:Is the GAC saying that the "claims notice" should apply to just new gTLDs (i.e. via the TMCH), or would they want it to apply to legacy gTLDs like com/net/org ? Mary Wong:@George, I believe the GAC advice has consistently been for new gTLDs (and for future rounds). However, the original PDP - and hence ours - covers both legacy and new gTLDs. George Kirikos:Right, thanks Mary. George Kirikos:At least 1 IGO (namely WIPO) is actively involved in the other working group (dealing with UDRP/URS reform, once we get there). George Kirikos:reform/review, even George Kirikos:The list ICANN/GAC created was arbitrary. Mary Wong:It was based on the .int criteria George Kirikos:.INT says "Only one registration is allowed for each organization", see: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.iana.org_domains_i… George Kirikos:Yes, the ICANN reserved list for IGOs have multiple reserved strings for some (many) organizations. At least the Article 6ter database is transparent/open. George Kirikos:Yes=Yet George Kirikos:Some of the governments (USA) suggested some organizations claim to be "IGOs", but aren't real IGOs!! (she didn't say which ones are fake, though!) Jay Chapman:exactly Phil Paul Tattersfield:would it be possible to get a list of those organizations George? George Kirikos:Even under UDRP, TM rights are territorial. So, a Belgium TM isn't recognized by Canada, but a Belgium TM holder can file a UDRP against a Canadian domain name owner. George Kirikos:@Paul: she didn't identify which ones she was talking about. George Kirikos:For the "facilitate continued discussions", are the IGOs going to participate in this WG more than they have to date? Lori Schulman:IGO participation would be very welcome Lori Schulman:The absence of the IGO's has hindered the work IMHO Philip Corwin:@Lori--I wouldn't hold your breath ;-) George Kirikos:Agreed, Lori. We also had 1 GAC member in this IGO (the gentleman from Jamaica). George Kirikos:It looks like he's become just an Observer now, though (Gary Campbell): https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… Lori Schulman:I know, no breath holding...but I have emphasized this point at every opportunity Lori Schulman:If IGO's are not here then my organization is not open to my spending too much more time on this Mary Wong:At this stage in our work, perhaps we can consider the many public comments submitted (including the +1s) as a form of participation. Philip Corwin:If ICANN had a sargent-at-arms we culd compel their participation ;-) George Kirikos:The organizations can still rely on their common law rights, though (i.e. their names), even if not registered in the Article 6ter database. George Kirikos:Standing is such an easy test to meet. Lori Schulman:Its actually not so easy George Kirikos:LOL Phil George Kirikos:For the UDRP, I mean, Lori (not court-level standing). First prong of the UDRP/URS is often called the "standing" test. 99% of the time, that test is passed. Lori Schulman:that is what we have been grappling with...using a trademark system for adjudicating rights that may not be legally recognized as trademark rigths Paul Tattersfield:@George its evideencing the non registered rights that makes the work George Kirikos:Their same position since 2002, Phil. Lori Schulman:Got it, George Lori Schulman:Not all jurisdictions recognize common law rights PAUL KEATING:Sorry for being late. George Kirikos:True, Lori. But, for the UDRP, most panelists aren't sticklers for that level of detail. :-) They care more about the "bad faith" parts of the test. PAUL KEATING:@Lori, however the UDRP panels traditionally DO recognize common law trademarks. Lori Schulman:Paul K: Are they doing that for non commonlaw countries? Mary Wong:@Phil, IGO full names will be reserved at the second level - that was a PDP recommendation adopted by the ICANN Board (currently in implementation). Lori Schulman:It's been years since I have handled UDRP work George Kirikos:France is civil law, right? I'm sure we can find a French complainant that relied upon a common law right, i.e. unregistered rights. Lori Schulman:Yes, France is civil law. PAUL KEATING:in teh UDRP context it is sufficient to show rights that would supprot a passing off cliam. That is a far lower standard. Lori Schulman:Common Law are former UK colonies; US, Canada, Australia, NZ, etc Paul Tattersfield:@Lori does that matter? Are non common law systems specifically excluded? Lori Schulman:I don't know. My understanding is that common law rights are only recognized in Common Law jurisdictions George Kirikos:I found a case, Lori. George Kirikos:http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-2024 George Kirikos:Does the fact that unregistered trademarks are not recognised as such in France mean that French entities are to be disadvantaged as against entities based in common law countries such as the UK or in civil law countries such as Germany where unregistered trademarks are recognised by statute? The Panel does not think so. George Kirikos:(and so on) :-) Lori Schulman:Of course you did. You missed your calling, George. Librarian extraordinaire. PAUL KEATING:@Phil, are we going to give notice to everyone now? George Kirikos:hehe :-) When I've had litigation, I've helped my own lawyers in finding good precedents that they didn't find. Mary Wong:@George, @Lori - it may be more appropriate to speak of "registered" and "unregistered" trademarks rather than "common law rights" for the latter. Paul Tattersfield:Thanks George that is useful George Kirikos:Yes, Mary. Lori Schulman:Thanks Mary, agree. Mary Wong:Regardless, though, the problem Lori noted remains with the UDRP/URS - even unregistered trademarks rely on the Complainant having some form of trademark-type rights. Petter Rindforth:Compare with .eu ADR: The Complaint shall specify the names in respect of which a right is recognized or established by the national law of a Member State and/or Community law. For each such name, describe exactly the type of right(s) claimed, specify the law or law(s) as well as the conditions under which the right is recognized and/or established. In other words: can be any kind of protected name right in any member state. Mary Wong:@Petter, yes, so a dispute resolution procedure can conceivably be broader than just trademark rights (registered or otherwise). George Kirikos:By George :-) George Kirikos:I think it might have been Bruce Tonkin who gave the WHO Magazine thought experiment. George Kirikos:Immunity is a defence to an action. It doesn't apply when they're the initiator of the dispute. George Kirikos:+1 Paul Keating Paul Tattersfield:exactly they are seeking to use UDRP or URS as a sword to seize assets from third parties as opposed to using UDRP or URS to defend their own assets George Kirikos:We need to methodically do the work, though, to dot all the i's and cross all the t's. Lori Schulman:Please remember that the sword is against bad actors. George Kirikos:Alleged bad actors. Even bad actors deserve due process. Lori Schulman:We are not denying due process. George Kirikos:If it was so easy to identify "bad actors", we need not even have courts. :-) George Kirikos:36 George Kirikos:37 now. Paul Tattersfield:Agrreed Lori , however there are better mechanisms than UDRP/URS that can be used for 99% of the bad actors Lori Schulman:And BTW, there is a case law that says that ADR offers due process. I don't agree with the assumption that only courts provide due process. George Kirikos:WHO just submitted a "me too" comment. Lori Schulman:that makes me laugh Lori Schulman:WIPO comments were quite different from GAS, UNESCO, USG comments Lori Schulman:I meant GAC. Freudian slip. Mary Wong:GNSO Council has to approve before it goes to the Board George Kirikos:ADR can be beneficial, but only if both sides consent to it. IGOs want to compel others into a binding process that they've designed --- that's forum shopping. PAUL KEATING:ok Petter Rindforth:@Lori - if we talk about WIPO - a number of other IGO's simply replied supporting WIPO's comments George Kirikos:Here's the GAC comment: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_… George Kirikos:It's 2 pages long. George Kirikos:That's it. George Kirikos:Oops, 3 pages, even. Paul Tattersfield:other entities with the same anacrnyms George Kirikos:That 3rd parties can use the same acronyms, as long as it's non-infringing. Mary Wong:+1 George Lori Schulman:I took it to mean that way Phil described. Can we ask the GAC to clarify? George Kirikos:But, the IGOs shouldn't be the ones to be determining who is "legitimate", and who is not. e.g. a free speech site criticizing IGOs is protected in the USA, Canada, and other countries. Mary Wong:@Lori, the WG can request the GNSO Council to include that as a clarifying question in its review of the GAC Communique that is sent to the Board. A draft is being prepared for the Council's 20 April meeting. George Kirikos:But, IGOs might say "that's not legitimate." Lori Schulman:I would just like to understand precisely what they mean. Lori Schulman:I am not in favor of rushing though comments. Paul Tattersfield:I agree Lori Lori Schulman:I think that the standing would be worked out if there were a separate DRP Lori Schulman:It might be supplying evidence of the organizing treaty George Kirikos:But, a separate DRP, not grounded in any law, would be creation of brand new law. George Kirikos:i.e. what is the underlying "legal dispute" that the new curative process for IGOs is attempting to address? Mary Wong:@George, in 2007 a separate DRP was drafted for consideration that was based on 6ter. George Kirikos:Right, Mary. But, under Article 6ter, it's NATIONS who are ones with the treaty obligations. George Kirikos:So, that means it would be the Government of Canada, Government of USA, etc. who would be the complainants. George Kirikos:But, we know from the State Department letter for UNIFEM that they said that IGOs should file a TM lawsuit, to enforce rights. George Kirikos:That availability of the courts fulfilled their obligations. George Kirikos:i.e. those were trademark rights, just like the UDRP. George Kirikos:Here was the UNIFEM stuff: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.state.gov_s_l_3864… George Kirikos:". But, as noted in the preceding paragraph, the latter obligation would be met under the laws of general application that the United States has enacted, and it is the responsibility of the party claiming than an infringement has occurred to take action under U.S. law to challenge perceived unlawful use in commerce." George Kirikos:Also, "For example, the Trademark Act of 1946, as amended, 15 U.S.C. u 1051 et seq., offers the possibility for interested parties to challenge use of marks in commerce based on theories, inter alia, of likelihood of confusion, false association and unfair competition. These laws satisfy U.S. obligations under article 6ter by providing the opportunity for States and international intergovernmental organizations to pursue remedies for the unauthorized use of names and other insignia listed in article 6ter, including in cases involving use on the INTERNET. Responsibility for evaluating potentially infringing use of trademarks and other intellectual property, and for taking enforcement action when deemed appropriate, however, rests with the party whose interests are affected." Mary Wong:We will send around the draft procedure Petter and I mentioned to the WG by email.. George Kirikos:So, that letter is disagreeing with the notion that they're in a unique category. Mary Wong:@George, that may be one reason why the USG filed a public comment for our Initial Report - a concern that TM rights not be unduly expanded? George Kirikos:I'm not sure, Mary. I actually wrote an email to the USG person who authored their position, for my own personaly research, to try to get some explanations on their reasoning, but none was forthcoming. George Kirikos:*personaly = personal Paul Tattersfield:exactly George Kirikos:Policy Guidance is comparable to the WIPO overview -- an independent review of standing, through very thorough background research, more than any individual panelist could afford to do on a simple case. Mary Wong:@Lori, not from ICANN, no. George Kirikos:Not from ICANN, Lori. But, WIPO has their Overview of Selected Questions. George Kirikos:I'm not sure if NAF has any independent training manuals that are similar. PAUL KEATING:@Lori, there is a "policy" which is the Panel Index 2.0 at WIPO Mary Wong:It seems to staff that the main objection to Policy Guidance is that it merely interprets - and doesn't expand or amend - the existing UDRP grounds. Mary Wong:The objection being, when it DOES, then it is not appropriate for Policy Guidance. Petter Rindforth:I presume that at least the most well-known IGO's can claim unregistered but well-known trademark rights for their names (connected to some services) Petter Rindforth:...without having to refer to Article 6ter Mary Wong:@Lori, that is indeed one of the USG concerns. George Kirikos:+1 Paul Keating Mary Wong:@Paul K, yes, that was one of the problems highlighted during the GAC-GNSO discussions - that communication under 6ter does NOT go through any examination by WIPO. And the USG pointed out that only some countries do any further examination. George Kirikos:6ter might be like unreviewed Benelux TMs. But, there are 2 other prongs to the UDRP, so losing the first rarely matters. Lori Schulman:USPTO does "examine" 6 ter notices before they hit the register Mary Wong:@George, losing under the first ground pretty much ends the Complaint. George Kirikos:Almost always, it comes down to the 3rd prong (bad faith), and occasionaly the 2nd prong. George Kirikos:Yes, Mary. But, it's rarely ever determinative, is my point. George Kirikos:99% of the time, the first prong is met. Mary Wong:And that is one of the criticisms of it :) George Kirikos:It's not like the IGO is going to bring up the mark "UNESCO", for a dispute over "BABIES.com". Lori Schulman:Got it Paul K. George Kirikos:It has to have some resemblance to the domain under dispute, that's all. Paul Tattersfield:Agree Paul so well put Lori Schulman:I like the idea of 6ter as an element to prove standing not the sole basis George Kirikos:The ones who want the "strict" interpretation of Article 6tter want the most liberal rules for everything else, ironically. George Kirikos:(i.e. creating a brand new binding arbitration has no basis in law whatsoever, if they want to stricly interpret things) George Kirikos:Some of the constituencies will hopefully comment by the end of today. Lori Schulman:IPC will George Kirikos:It might take 2 or 3 calls. We need to be systematic. Mary Wong:Thanks, Phil - that gives us a bit more breathing room to complete the staff summary! George Kirikos:We can perhaps continue on the list, for some things. Lori Schulman:I like the idea of relying more on the list Lori Schulman:I am saturated with ICANN calls like many others George Kirikos:Yes, 90 mins for the RPM on Wednesdays, and 90 mins for IGOs on Thursdays is a kiiller combo. Petter Rindforth:I think it is easy to go throgh all comments on a summarized base Lori Schulman:my head hurts, literally, from the headphones George Kirikos:Are you in a big office, Lori? Lori Schulman:no, I am at home most of the time George Kirikos:(I have it on speakerphone, but muted, then I switch to the handset when speaking) Mary Wong:The WG has a responsibility to review all comments - though of course that means that all WG members are presumed to have done so; for the actual calls, the WG can elect to focus only on some. Lori Schulman:but I have people and activities around me PAUL KEATING:i surrender Lori Schulman:Mary, right, we have to review all comments Lori Schulman:But I like Paul's question: How does this affect the report? Jay Chapman:thanks, all Lori Schulman:We should ask it for every one, George Kirikos:So, are we going to do outreach to the IGOs one more time? Lori Schulman:bye George Kirikos:(i.e. the facilitated discussion?) Paul Tattersfield:thanks all bye PAUL KEATING:thank you all. Have great days Petter Rindforth:Is there anything else than ICANN in this world? George Kirikos:Bye folks.

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Attendance, Mp3, AC Recording & AC Chat for IGO-INGO Curative Rights Protection PDP WG call on Thursday, 30 March 2017
by Michelle DeSmyter March 30, 2017

March 30, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 30 March 2017 at 16:00 UTC. Mp3: http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3 <http://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30mar17-en.mp3> AC Recording: https://participate.icann.org/p1om4k12bxb/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__audio.icann.org_gnso_gn…> On page: https://gnso.icann.org/en/group-activities/calendar#dec[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: David Maher – RySG George Kirikos – Individual Jay Chapman – Individual Lori Schulman - IPC Paul Keating - NCUC Paul Tattersfield – Individual Phil Corwin – BC Apologies: ICANN staff: Mary Wong 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-ppsai-pdp-wg/<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_…> Wiki page: https://community.icann.org/x/B8TRAw Thank you. Kind regards, Michelle DeSmyter ------------------------------- Adobe Connect chat transcript for Thursday, 30 March 2017 Michelle DeSmyter 2:Dear All, Welcome to the IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Thursday, 30 March 2017 at 16:00 UTC. Michelle DeSmyter 2:Meeting page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Petter Rindforth:Hi there! George Kirikos:Hi Petter. How are you today? Petter Rindforth:Busy day, and still snow in Stockholm :-) George Kirikos:A little bit of snow can be nice! George Kirikos:But, too much is awful. Dennis Chang:Loved Stockholm in snow last week. Beautiful! George Kirikos:Where do you reside, Dennis? (I'm in Toronto, so we get 4 proper seasons, including snow in winter) :-) Dennis Chang:Los Angeles. Visited Stockholm on my way back from Copenhagan. George Kirikos:Nice....I guess it's sunny all year, for you. Dennis Chang:let's see. 22 degrees Sunny. today. George Kirikos:Maybe blast out an email reminder? Mary Wong:@George, will do Paul Tattersfield:Hello everyone George Kirikos:Welcome, Paul. Lori Schulman:Hi' Lori Schulman:No sound on phone George Kirikos:Hi Lori. George Kirikos:No one's talking at the moment. :-) Paul Tattersfield:Hi George, did you follow the football? - You were very unlucky in the last minute Lori Schulman:Now I have sound. George Kirikos:Echo, echo. George Kirikos:Someone needs to mute (*6 to mute/unmute). George Kirikos:I don't know how it compares to other working groups, but overall we've had pretty good attendance from the "core" group members: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di… Mary Wong:The Working Group co-chairs have the discretion to reschedule a call if they don't believe a sufficient quorum has been reached. George Kirikos:Jay Chapman and Paul Keating are often here....maybe just running a little late. Mary Wong:We have 35 as of today Paul Tattersfield:I'm planing on submitting comments shortly - I just need to tidy the footnotes George Kirikos:Up to 36 now, actually. George Kirikos:https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-… Mary Wong:Oops, thanks George George Kirikos:Some changes to the recommendations might not be necessary -- might need more elaboration/explanation, though, to enhance the final document. Paul Tattersfield:about 6 me too comments Jay Chapman:Forgive my tardiness...hello everyone George Kirikos:Welcome Jay. Jay Chapman:hi George Lori Schulman:That is an important acknowledgement by IGOs George Kirikos:Is the GAC saying that the "claims notice" should apply to just new gTLDs (i.e. via the TMCH), or would they want it to apply to legacy gTLDs like com/net/org ? Mary Wong:@George, I believe the GAC advice has consistently been for new gTLDs (and for future rounds). However, the original PDP - and hence ours - covers both legacy and new gTLDs. George Kirikos:Right, thanks Mary. George Kirikos:At least 1 IGO (namely WIPO) is actively involved in the other working group (dealing with UDRP/URS reform, once we get there). George Kirikos:reform/review, even George Kirikos:The list ICANN/GAC created was arbitrary. Mary Wong:It was based on the .int criteria George Kirikos:.INT says "Only one registration is allowed for each organization", see: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.iana.org_domains_i… George Kirikos:Yes, the ICANN reserved list for IGOs have multiple reserved strings for some (many) organizations. At least the Article 6ter database is transparent/open. George Kirikos:Yes=Yet George Kirikos:Some of the governments (USA) suggested some organizations claim to be "IGOs", but aren't real IGOs!! (she didn't say which ones are fake, though!) Jay Chapman:exactly Phil Paul Tattersfield:would it be possible to get a list of those organizations George? George Kirikos:Even under UDRP, TM rights are territorial. So, a Belgium TM isn't recognized by Canada, but a Belgium TM holder can file a UDRP against a Canadian domain name owner. George Kirikos:@Paul: she didn't identify which ones she was talking about. George Kirikos:For the "facilitate continued discussions", are the IGOs going to participate in this WG more than they have to date? Lori Schulman:IGO participation would be very welcome Lori Schulman:The absence of the IGO's has hindered the work IMHO Philip Corwin:@Lori--I wouldn't hold your breath ;-) George Kirikos:Agreed, Lori. We also had 1 GAC member in this IGO (the gentleman from Jamaica). George Kirikos:It looks like he's become just an Observer now, though (Gary Campbell): https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… Lori Schulman:I know, no breath holding...but I have emphasized this point at every opportunity Lori Schulman:If IGO's are not here then my organization is not open to my spending too much more time on this Mary Wong:At this stage in our work, perhaps we can consider the many public comments submitted (including the +1s) as a form of participation. Philip Corwin:If ICANN had a sargent-at-arms we culd compel their participation ;-) George Kirikos:The organizations can still rely on their common law rights, though (i.e. their names), even if not registered in the Article 6ter database. George Kirikos:Standing is such an easy test to meet. Lori Schulman:Its actually not so easy George Kirikos:LOL Phil George Kirikos:For the UDRP, I mean, Lori (not court-level standing). First prong of the UDRP/URS is often called the "standing" test. 99% of the time, that test is passed. Lori Schulman:that is what we have been grappling with...using a trademark system for adjudicating rights that may not be legally recognized as trademark rigths Paul Tattersfield:@George its evideencing the non registered rights that makes the work George Kirikos:Their same position since 2002, Phil. Lori Schulman:Got it, George Lori Schulman:Not all jurisdictions recognize common law rights PAUL KEATING:Sorry for being late. George Kirikos:True, Lori. But, for the UDRP, most panelists aren't sticklers for that level of detail. :-) They care more about the "bad faith" parts of the test. PAUL KEATING:@Lori, however the UDRP panels traditionally DO recognize common law trademarks. Lori Schulman:Paul K: Are they doing that for non commonlaw countries? Mary Wong:@Phil, IGO full names will be reserved at the second level - that was a PDP recommendation adopted by the ICANN Board (currently in implementation). Lori Schulman:It's been years since I have handled UDRP work George Kirikos:France is civil law, right? I'm sure we can find a French complainant that relied upon a common law right, i.e. unregistered rights. Lori Schulman:Yes, France is civil law. PAUL KEATING:in teh UDRP context it is sufficient to show rights that would supprot a passing off cliam. That is a far lower standard. Lori Schulman:Common Law are former UK colonies; US, Canada, Australia, NZ, etc Paul Tattersfield:@Lori does that matter? Are non common law systems specifically excluded? Lori Schulman:I don't know. My understanding is that common law rights are only recognized in Common Law jurisdictions George Kirikos:I found a case, Lori. George Kirikos:http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-2024 George Kirikos:Does the fact that unregistered trademarks are not recognised as such in France mean that French entities are to be disadvantaged as against entities based in common law countries such as the UK or in civil law countries such as Germany where unregistered trademarks are recognised by statute? The Panel does not think so. George Kirikos:(and so on) :-) Lori Schulman:Of course you did. You missed your calling, George. Librarian extraordinaire. PAUL KEATING:@Phil, are we going to give notice to everyone now? George Kirikos:hehe :-) When I've had litigation, I've helped my own lawyers in finding good precedents that they didn't find. Mary Wong:@George, @Lori - it may be more appropriate to speak of "registered" and "unregistered" trademarks rather than "common law rights" for the latter. Paul Tattersfield:Thanks George that is useful George Kirikos:Yes, Mary. Lori Schulman:Thanks Mary, agree. Mary Wong:Regardless, though, the problem Lori noted remains with the UDRP/URS - even unregistered trademarks rely on the Complainant having some form of trademark-type rights. Petter Rindforth:Compare with .eu ADR: The Complaint shall specify the names in respect of which a right is recognized or established by the national law of a Member State and/or Community law. For each such name, describe exactly the type of right(s) claimed, specify the law or law(s) as well as the conditions under which the right is recognized and/or established. In other words: can be any kind of protected name right in any member state. Mary Wong:@Petter, yes, so a dispute resolution procedure can conceivably be broader than just trademark rights (registered or otherwise). George Kirikos:By George :-) George Kirikos:I think it might have been Bruce Tonkin who gave the WHO Magazine thought experiment. George Kirikos:Immunity is a defence to an action. It doesn't apply when they're the initiator of the dispute. George Kirikos:+1 Paul Keating Paul Tattersfield:exactly they are seeking to use UDRP or URS as a sword to seize assets from third parties as opposed to using UDRP or URS to defend their own assets George Kirikos:We need to methodically do the work, though, to dot all the i's and cross all the t's. Lori Schulman:Please remember that the sword is against bad actors. George Kirikos:Alleged bad actors. Even bad actors deserve due process. Lori Schulman:We are not denying due process. George Kirikos:If it was so easy to identify "bad actors", we need not even have courts. :-) George Kirikos:36 George Kirikos:37 now. Paul Tattersfield:Agrreed Lori , however there are better mechanisms than UDRP/URS that can be used for 99% of the bad actors Lori Schulman:And BTW, there is a case law that says that ADR offers due process. I don't agree with the assumption that only courts provide due process. George Kirikos:WHO just submitted a "me too" comment. Lori Schulman:that makes me laugh Lori Schulman:WIPO comments were quite different from GAS, UNESCO, USG comments Lori Schulman:I meant GAC. Freudian slip. Mary Wong:GNSO Council has to approve before it goes to the Board George Kirikos:ADR can be beneficial, but only if both sides consent to it. IGOs want to compel others into a binding process that they've designed --- that's forum shopping. PAUL KEATING:ok Petter Rindforth:@Lori - if we talk about WIPO - a number of other IGO's simply replied supporting WIPO's comments George Kirikos:Here's the GAC comment: https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_… George Kirikos:It's 2 pages long. George Kirikos:That's it. George Kirikos:Oops, 3 pages, even. Paul Tattersfield:other entities with the same anacrnyms George Kirikos:That 3rd parties can use the same acronyms, as long as it's non-infringing. Mary Wong:+1 George Lori Schulman:I took it to mean that way Phil described. Can we ask the GAC to clarify? George Kirikos:But, the IGOs shouldn't be the ones to be determining who is "legitimate", and who is not. e.g. a free speech site criticizing IGOs is protected in the USA, Canada, and other countries. Mary Wong:@Lori, the WG can request the GNSO Council to include that as a clarifying question in its review of the GAC Communique that is sent to the Board. A draft is being prepared for the Council's 20 April meeting. George Kirikos:But, IGOs might say "that's not legitimate." Lori Schulman:I would just like to understand precisely what they mean. Lori Schulman:I am not in favor of rushing though comments. Paul Tattersfield:I agree Lori Lori Schulman:I think that the standing would be worked out if there were a separate DRP Lori Schulman:It might be supplying evidence of the organizing treaty George Kirikos:But, a separate DRP, not grounded in any law, would be creation of brand new law. George Kirikos:i.e. what is the underlying "legal dispute" that the new curative process for IGOs is attempting to address? Mary Wong:@George, in 2007 a separate DRP was drafted for consideration that was based on 6ter. George Kirikos:Right, Mary. But, under Article 6ter, it's NATIONS who are ones with the treaty obligations. George Kirikos:So, that means it would be the Government of Canada, Government of USA, etc. who would be the complainants. George Kirikos:But, we know from the State Department letter for UNIFEM that they said that IGOs should file a TM lawsuit, to enforce rights. George Kirikos:That availability of the courts fulfilled their obligations. George Kirikos:i.e. those were trademark rights, just like the UDRP. George Kirikos:Here was the UNIFEM stuff: https://urldefense.proofpoint.com/v2/url?u=https-3A__www.state.gov_s_l_3864… George Kirikos:". But, as noted in the preceding paragraph, the latter obligation would be met under the laws of general application that the United States has enacted, and it is the responsibility of the party claiming than an infringement has occurred to take action under U.S. law to challenge perceived unlawful use in commerce." George Kirikos:Also, "For example, the Trademark Act of 1946, as amended, 15 U.S.C. u 1051 et seq., offers the possibility for interested parties to challenge use of marks in commerce based on theories, inter alia, of likelihood of confusion, false association and unfair competition. These laws satisfy U.S. obligations under article 6ter by providing the opportunity for States and international intergovernmental organizations to pursue remedies for the unauthorized use of names and other insignia listed in article 6ter, including in cases involving use on the INTERNET. Responsibility for evaluating potentially infringing use of trademarks and other intellectual property, and for taking enforcement action when deemed appropriate, however, rests with the party whose interests are affected." Mary Wong:We will send around the draft procedure Petter and I mentioned to the WG by email.. George Kirikos:So, that letter is disagreeing with the notion that they're in a unique category. Mary Wong:@George, that may be one reason why the USG filed a public comment for our Initial Report - a concern that TM rights not be unduly expanded? George Kirikos:I'm not sure, Mary. I actually wrote an email to the USG person who authored their position, for my own personaly research, to try to get some explanations on their reasoning, but none was forthcoming. George Kirikos:*personaly = personal Paul Tattersfield:exactly George Kirikos:Policy Guidance is comparable to the WIPO overview -- an independent review of standing, through very thorough background research, more than any individual panelist could afford to do on a simple case. Mary Wong:@Lori, not from ICANN, no. George Kirikos:Not from ICANN, Lori. But, WIPO has their Overview of Selected Questions. George Kirikos:I'm not sure if NAF has any independent training manuals that are similar. PAUL KEATING:@Lori, there is a "policy" which is the Panel Index 2.0 at WIPO Mary Wong:It seems to staff that the main objection to Policy Guidance is that it merely interprets - and doesn't expand or amend - the existing UDRP grounds. Mary Wong:The objection being, when it DOES, then it is not appropriate for Policy Guidance. Petter Rindforth:I presume that at least the most well-known IGO's can claim unregistered but well-known trademark rights for their names (connected to some services) Petter Rindforth:...without having to refer to Article 6ter Mary Wong:@Lori, that is indeed one of the USG concerns. George Kirikos:+1 Paul Keating Mary Wong:@Paul K, yes, that was one of the problems highlighted during the GAC-GNSO discussions - that communication under 6ter does NOT go through any examination by WIPO. And the USG pointed out that only some countries do any further examination. George Kirikos:6ter might be like unreviewed Benelux TMs. But, there are 2 other prongs to the UDRP, so losing the first rarely matters. Lori Schulman:USPTO does "examine" 6 ter notices before they hit the register Mary Wong:@George, losing under the first ground pretty much ends the Complaint. George Kirikos:Almost always, it comes down to the 3rd prong (bad faith), and occasionaly the 2nd prong. George Kirikos:Yes, Mary. But, it's rarely ever determinative, is my point. George Kirikos:99% of the time, the first prong is met. Mary Wong:And that is one of the criticisms of it :) George Kirikos:It's not like the IGO is going to bring up the mark "UNESCO", for a dispute over "BABIES.com". Lori Schulman:Got it Paul K. George Kirikos:It has to have some resemblance to the domain under dispute, that's all. Paul Tattersfield:Agree Paul so well put Lori Schulman:I like the idea of 6ter as an element to prove standing not the sole basis George Kirikos:The ones who want the "strict" interpretation of Article 6tter want the most liberal rules for everything else, ironically. George Kirikos:(i.e. creating a brand new binding arbitration has no basis in law whatsoever, if they want to stricly interpret things) George Kirikos:Some of the constituencies will hopefully comment by the end of today. Lori Schulman:IPC will George Kirikos:It might take 2 or 3 calls. We need to be systematic. Mary Wong:Thanks, Phil - that gives us a bit more breathing room to complete the staff summary! George Kirikos:We can perhaps continue on the list, for some things. Lori Schulman:I like the idea of relying more on the list Lori Schulman:I am saturated with ICANN calls like many others George Kirikos:Yes, 90 mins for the RPM on Wednesdays, and 90 mins for IGOs on Thursdays is a kiiller combo. Petter Rindforth:I think it is easy to go throgh all comments on a summarized base Lori Schulman:my head hurts, literally, from the headphones George Kirikos:Are you in a big office, Lori? Lori Schulman:no, I am at home most of the time George Kirikos:(I have it on speakerphone, but muted, then I switch to the handset when speaking) Mary Wong:The WG has a responsibility to review all comments - though of course that means that all WG members are presumed to have done so; for the actual calls, the WG can elect to focus only on some. Lori Schulman:but I have people and activities around me PAUL KEATING:i surrender Lori Schulman:Mary, right, we have to review all comments Lori Schulman:But I like Paul's question: How does this affect the report? Jay Chapman:thanks, all Lori Schulman:We should ask it for every one, George Kirikos:So, are we going to do outreach to the IGOs one more time? Lori Schulman:bye George Kirikos:(i.e. the facilitated discussion?) Paul Tattersfield:thanks all bye PAUL KEATING:thank you all. Have great days Petter Rindforth:Is there anything else than ICANN in this world? George Kirikos:Bye folks.

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Working Group call on now
by ICANN Policy Calendar March 30, 2017

March 30, 2017

Dear all, If you were planning to join the Working Group call today, it is starting now. Please find the call-in details below. Cheers Mary From: PolicyCalendar(a)icann.org When: 18:00 - 19:30 March 30, 2017 Subject: IGO-INGO Access to Curative Rights Protection Mechanisms Working Group Location: 16:00 UTC Dear all, The IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call will take place on Thursday, 30 March 2017 at 16:00 UTC for 90 minutes 09:00 PDT, 12:00 EDT, 17:00 London, 18:00 CET For other times: http://tinyurl.com/jwatvqs Adobe Connect WITH AUDIO enabled:https://participate.icann.org/crp For those of you using the Adobe Connect audio, you may do so by activating your computer microphone via the Adobe room (Using a headset is preferable here). Please confirm your dial-out requests to GNSO Secretariats gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> ______________________________________________________________________ Participant passcode: IGO Dial in numbers: Country Toll Numbers Freephone/ Toll Free Number ARGENTINA 0800-777-0519 AUSTRALIA ADELAIDE: 61-8-8121-4842 1-800-657-260 AUSTRALIA BRISBANE: 61-7-3102-0944 1-800-657-260 AUSTRALIA CANBERRA: 61-2-6100-1944 1-800-657-260 AUSTRALIA MELBOURNE: 61-3-9010-7713 1-800-657-260 AUSTRALIA PERTH: 61-8-9467-5223 1-800-657-260 AUSTRALIA SYDNEY: 61-2-8205-8129 1-800-657-260 AUSTRIA 43-1-92-81-113 0800-005-259 BELGIUM 32-2-400-9861 0800-3-8795 BRAZIL SAO PAULO: 55-11-3958-0779 0800-7610651 CHILE 1230-020-2863 CHINA CHINA A: 86-400-810-4789 10800-712-1670 CHINA CHINA B: 86-400-810-4789 10800-120-1670 COLOMBIA 01800-9-156474 CROATIA 080-08-06-309 CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 DENMARK 45-7014-0284 8088-8324 ESTONIA 800-011-1093 FINLAND 358-9-5424-7162 0-800-9-14610 FRANCE LYON: 33-4-26-69-12-85 080-511-1496 FRANCE MARSEILLE: 33-4-86-06-00-85 080-511-1496 FRANCE PARIS: 33-1-70-70-60-72 080-511-1496 GERMANY 49-69-2222-20362 0800-664-4247 GREECE 30-80-1-100-0687 00800-12-7312 HONG KONG 852-3001-3863 800-962-856 HUNGARY 36-1-700-8856 06-800-12755 INDIA INDIA A: 000-800-852-1268 INDIA INDIA B: 000-800-001-6305 INDIA INDIA C: 1800-300-00491 INDONESIA 001-803-011-3982 IRELAND 353-1-246-7646 1800-992-368 ISRAEL 1-80-9216162 ITALY MILAN: 39-02-3600-6007 800-986-383 ITALY ROME: 39-06-8751-6018 800-986-383 ITALY TORINO: 39-011-510-0118 800-986-383 JAPAN OSAKA: 81-6-7878-2631 0066-33-132439 JAPAN TOKYO: 81-3-6868-2631 0066-33-132439 LATVIA 8000-3185 LUXEMBOURG 352-27-000-1364 8002-9246 MALAYSIA 1-800-81-3065 MEXICO GUADALAJARA (JAL): 52-33-3208-7310 001-866-376-9696 MEXICO MEXICO CITY: 52-55-5062-9110 001-866-376-9696 MEXICO MONTERREY: 52-81-2482-0610 001-866-376-9696 NETHERLANDS 31-20-718-8588 0800-023-4378 NEW ZEALAND 64-9-970-4771 0800-447-722 NORWAY 47-21-590-062 800-15157 PANAMA 011-001-800-5072065 PERU 0800-53713 PHILIPPINES 63-2-858-3716 1800-111-42453 POLAND 00-800-1212572 PORTUGAL 8008-14052 ROMANIA 40-31-630-01-79 RUSSIA 8-10-8002-0144011 SAUDI ARABIA 800-8-110087 SINGAPORE 65-6883-9230 800-120-4663 SLOVAK REPUBLIC 421-2-322-422-25 0800-002066 SOUTH AFRICA 080-09-80414 SOUTH KOREA 82-2-6744-1083 00798-14800-7352 SPAIN 34-91-414-25-33 800-300-053 SWEDEN 46-8-566-19-348 0200-884-622 SWITZERLAND 41-44-580-6398 0800-120-032 TAIWAN 886-2-2795-7379 00801-137-797 THAILAND 001-800-1206-66056 TURKEY 00-800-151-0516 UNITED ARAB EMIRATES 8000-35702370 UNITED KINGDOM BIRMINGHAM: 44-121-210-9025 0808-238-6029 UNITED KINGDOM GLASGOW: 44-141-202-3225 0808-238-6029 UNITED KINGDOM LEEDS: 44-113-301-2125 0808-238-6029 UNITED KINGDOM LONDON: 44-20-7108-6370 0808-238-6029 UNITED KINGDOM MANCHESTER: 44-161-601-1425 0808-238-6029 URUGUAY 000-413-598-3421 USA 1-517-345-9004 866-692-5726 VENEZUELA 0800-1-00-3702 Thank you. Kind regards, Terri

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Agenda and documents for Working Group call this Thursday
by Mary Wong March 28, 2017

March 28, 2017

Dear Working Group (WG) members, The proposed agenda, and associated links and documents, for the upcoming WG call this Thursday 30 March 2017 at 1600 UTC is as follows; please also note that this call has been scheduled for 90 minutes: 1. Roll call and updates to Statements of Interest 2. Recap of ICANN58 discussions: (a) co-chairs’ update and summary of GAC-GNSO facilitated dialogue on IGO acronyms protection; (b) co-chairs’ update and summary of Working Group session discussions on the issue of IGO standing and jurisdictional immunity 3. WG review: comments submitted by WIPO, OECD, US Government and the GAC 4. WG discussion: Other comments and proposals arising from ICANN58 discussions on IGO standing and jurisdictional immunity 5. Next steps/next meeting For Agenda Item #2(a), the recording and transcript of the 12 March facilitated GAC-GNSO dialogue session is available here: http://sched.co/9sZA. For Agenda Items #2(b) and #4, the recording and transcript of the 15 March open WG community session is available here: http://sched.co/9nms. For Agenda Item #3, the slides prepared for the ICANN58 open WG community session include the main points from the WIPO, OECD, USG and GAC comments: http://schd.ws/hosted_files/icann58copenhagen2017/ad/IGO-INGO%20CRP%20WG%20… (from page 20 onwards). We recommend, however, reviewing the full comments that were submitted: · WIPO: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… (submitted 21 February) · OECD: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… (submitted 27 February) · US Gov’t: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… (submitted 1 March) · GAC: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/… (submitted 12 March) Note that staff is currently preparing a Public Comment Review Tool in the form of a table (as customarily used by all GNSO PDP Working Groups) that will categorize all submissions received according to each of the WG’s preliminary recommendations. We hope to have the full Tool completed for your review by early next week, following the close of the public comment period this Friday. Thanks and cheers Mary

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