Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 08 September 2016 at 17:00 UTC at: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-08sep16-en.mp3 On page: https://gnso.icann.org/en/group-activities/calendar#sep The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos - Individual Petter Rindforth - IPC Phil Corwin - BC Jay Chapman – Individual Paul Tattersfiled – Individual Mason Cole – RySG Lori Schulman - IPC Gary S. Campbell - GAC Apologies: David Maher - RySG ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Yeşim Nazlar ** 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/>http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki page: https://community.icann.org/x/37rhAg Thank you. Kind regards, Yeşim Nazlar ------------------------------- Adobe Connect chat transcript for Thursday, 08 September 2016 Yesim Nazlar:Welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 08 September 2016 at 17:00 UTC Yesim Nazlar:Agenda: https://community.icann.org/x/UxmsAw George Kirikos:Hi folks! Paul Tattersfield:Hi George Kirikos:Hey Paul. Paul Tattersfield:How's things in Canada? George Kirikos:Great here, thanks. How are you today? Paul Tattersfield:Great thanks, were having an Indian Summer so it's a good time of year Philip Corwin:Hello all Mary Wong:First things first, welcome back Steve Chan from medical leave! George Kirikos:Nice to hear things went well, Steve. Steve Chan:Thanks Phil, Mary, everyone! Mason Cole:Good to have you back, Steve! George Kirikos:Sounds good, Phil. George Kirikos:#1 shouldn't be controversial. Jay Chapman:#1 good George Kirikos:We're just focusing on the BOLD language, for now. Jay Chapman:i do have questions about the final paragraph of the content for rec #1, but sounds like we're discussing this later Mary Wong:Yes, that's right, Phil George Kirikos:Is there an email with the staff concerns that was sent to the mailing list?? Mary Wong:@George, we have only discussed this with the co-chairs for now, as a follow up to last week's WG call George Kirikos:Thanks, Mary. Mary Wong:But if the co-chairs wish, we can forward that to the WG of course. Jay Chapman:that would help, Mary George Kirikos:+1 Phil. I think the UDRP panelists would give standing. George Kirikos:One additional argument would be that it would fall under 3(xiii) George Kirikos:https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en George Kirikos:"re warranted under these Rules and under applicable law," i.e. the words "and under applicable law" would trigger standing. Yesim Nazlar:Lori Schulman has joined on the phone bridge only Lori Schulman:I am now online. Thank you Yesim Nazlar:Lori Schulman is now on AC as well Paul Tattersfield:Hi Lori Lori Schulman:Hi Paul Yesim Nazlar:Gary S. Campbell joined George Kirikos:1.7 of the WIPO overviews also show how "unregistered" rights can be demonstrated. http://www.wipo.int/amc/en/domains/search/overview2.0/#17 Gary S Campbell:Hi Guys Lori Schulman:Thank you. I heard the end of your opinion. I will listen to the recording. George Kirikos:Welcome, Gary. Paul Tattersfield:+1 George the registration of rights is only a marker in time George Kirikos:Thanks Phil. George Kirikos:Page 5 of 11. George Kirikos:(very bottom of page 5) Lori Schulman:I am missing page 5 Lori Schulman:can't seem to scroll to it George Kirikos:Here's the text of Article 6ter: http://www.wipo.int/article6ter/en/legal_texts/article_6ter.html Lori Schulman:Using the copy Mary sent last night George Kirikos:I assume we want to capture the language "is not of such a nature as to suggest to the public that a connection exists between the organization concerned" ?? Lori Schulman:That was my typing sorry. George Kirikos:and also "such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization." George Kirikos:Changing that would mean creating new law, which we shouldn't contemplate. George Kirikos:Where it says "agent or licensee", perhaps make it "agent, assignee, or licensee"? (i.e. add "assignee" as a potential route) George Kirikos:I would be in favour of Option #1, because it most closely reflects the "status quo" if we did a thought experiment of "what would happen if the UDRP never existed". i.e. IGO would waive immunity to bring a court dispute, if the UDRP doesn't exist. If Option 2 exists, then it would support gaming by complainants. Lori Schulman:George, what do you mean by gaming? George Kirikos:I'll try to get in queue. Lori Schulman:ok Jay Chapman:exactly George George Kirikos:* 6 to unmute Mary Wong:FWIW Lori's concern is one shared by staff as well. Jay Chapman:the issue here is not immunity, it is the likelihood that a registrant's domain name can be taken away from them Jay Chapman:without due process Jay Chapman:due process = via a court of mutual jurisdiction Mary Wong:Our reasons include the fact that a successful plea of immunity is not the same substantive ground as vitiating a panel decision. George Kirikos:New hand. George Kirikos:We posted evidence of cases where courts overturned arbitrators. Mary Wong:@George, yes, but after consideration of the actual case facts, not simply based on an IGO successfully pleading immunity, surely? George Kirikos:IF arbitrators can't be trusted to give the correct decision, then removing the court option makes those arbitrators unaccountable. Lori Schulman:The system is not predictable. You cannot have a 100% predicatble system. George Kirikos:Courts are far more protective of due process than arbitration. Lori Schulman:Judges make incorrect decisions too. We through ourselves at the mercy of any system. Lori Schulman:throw George Kirikos:Yes, but courts have multiple levels of appeals, etc. Lori Schulman:George I get that but IGO's are not typical rightsholders Lori Schulman:that's the whole point George Kirikos:I disagree, Lori. IGOs still have to go to the courts if I start selling UNESCO biscuits, etc. George Kirikos:My devil's argument would be "get rid of the UDRP completely", Option #3. Lori Schulman:George, totally unacceptable to trademark owners and you know that. George Kirikos:What would IGOs (and TM holders) have as choices under Option #3?? George Kirikos:The "bargain" in the creation of the UDRP was that it wouldn't override the courts. Lori Schulman:The point of the UDRP was to make the system efficient and reasonably reliable for all concerned. George Kirikos:THe national courts still existed, for either side to use, if the decision was incorrect. Mary Wong:@George, it's likely that Option 3 is outside the scope of this WG. George Kirikos:I disagree, Lori. Vehemently. Lori Schulman:Yes, but the UDRP is geared toward private parites. Lori Schulman:private parties Lori Schulman:we don't have private parties here Lori Schulman:we have a governmental org Lori Schulman:How is that treated in Canada? George Kirikos:If you want a "more efficient" system, you could go the "URS" 1 page form, for the UDRP. THat would be very efficient. George Kirikos:Wouldn't get due process, though. Lori Schulman:URS does not impose permanent remedies Lori Schulman:names get recirculated not redelegated Lori Schulman:or transferred Mary Wong:And my hand is up too Lori Schulman:George, I am talking about problems related to IGO's Jay Chapman:Where an IGO licenses its rights to a third party for UDRP assertion, an option 1 or 2 would never arise, because immunity is not at issue George Kirikos:+1 Jay. We gave them the mechanism. They would only choose to avoid the licensing, etc., if they think they can game the outcome. George Kirikos:Sound was breaking up there. George Kirikos:I wasn't seriously proposing Option #3, but I am saying that Option #1 is more consistent with a hypothetical Option #3. George Kirikos:Should we jump to #5 first? Lori Schulman:i will defer my time to Mary Mary Wong:Right, George, understood - so just noting for the record, nothing more. George Kirikos:(bottom of page 10) George Kirikos:Oops, looks like we have Rec #6 too. Lori Schulman:I am not talking about parallel systems Lori Schulman:I am talking about arbitration as a reasonable road to address the concerns of an important minority of rights holders = IGO's Mary Wong:@Petter, this could be one of the open questions for which the WG seeks public input. George Kirikos:Reasonable for one side, but not both, Lori. George Kirikos:Mandatory arbitration has too many issues. Lori Schulman:George, we can find decisions that run favorable to registrants and investors Lori Schulman:As does court action for IGO's --too many serious, complicated issues Lori Schulman:UNESCO can take make roads to deal with its biscuits but lets stick to domain centered issues Lori Schulman:many George Kirikos:I disagreee, Lori. The law should be the same for biscuits as it is for domain names. Lori Schulman:demands, negotiation, mediation, arbitration. Court should never be a first resort George Kirikos:We shouldn't be creating new laws, here, just reflecting existing laws. Lori Schulman:We are. Lori Schulman:I believe re IGO immunity. George Kirikos:IGO waives that immunity, when it is the complainant. George Kirikos:It is 100% shielded, if it doesn't want to file any complaint. Lori Schulman:the standards of proof for actions in trademark vs domain cases aer not the same George Kirikos:Let's suppose an IGO hacks my domain name registrar, and steals my domain name. Lori Schulman:I am not a litigator so I can't go into deep details but I know that each cause of action has different legal hurdles George Kirikos:I would be unable to sue them to recover my domain -- they have immunity there, because they are the defendant. Lori Schulman:trademark claims v domain claims George Kirikos:However, in the opposite situation, as complainant, they have to waiver their immunity, to take property through the legal system from someone else. Lori Schulman:then there is a forum for your recourse Lori Schulman:that's how it works in U.S. a special court for the types of claims you describe so why not special forum Lori Schulman:for IGO issue George Kirikos:Which "IGO special court" exists for biscuit disputes? Lori Schulman:in US it court of claims Lori Schulman:don't know outside of us Lori Schulman:it is a court but with special rules for USG entities Lori Schulman:I don't know about IGO's Lori Schulman:Wish more were here to defend Lori Schulman:that may say something too Lori Schulman:can't sue for TM and Copyight claims in US Lori Schulman:it's an issue, I won't deny that but agencies are generally careful but no always George Kirikos:Are we back to 12 noon next week? Or sticking to 1 pm (Eastern time)? Mary Wong:Yes, I think so, Phil Mary Wong:Not at the moment Mary Wong:Will do, Phil Lori Schulman:This was lively. Thanks everyone. Jay Chapman:appreciate the discussion George Kirikos:Bye folks. Mary Wong:Thank you all! Jay Chapman:Bye everyone - thanks Yesim Nazlar:Next Call is set to 15 September at 16:00 UTC Lori Schulman:thank you phil Paul Tattersfield:thanks bye all Yesim Nazlar:Thank you all!