Dear All, Please find the MP3 recording for IGO-INGO Access to Curative Rights Protection Mechanisms Working Group call on Wednesday, 10 March 2015 at 1700 UTC at:http://audio.icann.org/gnso/gnso-ingo-group-11mar15-en.mp3 On page: http://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/calendar/ Attendees: George Kirikos - Individual Petter Rindforth – IPC Phil Corwin – BC Val Sherman - IPC David Heasley - IPC Paul Tattersfiled –Individual Jay Chapman – Individual Jim Bikoff – IPC Kathy Kleiman - NCUC David Maher - RySG Imran Ahmed Shah – NCUC Gary Campbell – GAC Paul Keating - NCUC Apologies: Kristine Dorrain- Individual Mason Cole – RySG ICANN staff: Mary Wong Steve Chan Nathalie Peregrine ** 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/97rhAg Thank you. Kind regards, Nathalie ------------------------------- Adobe Connect chat transcript for Wednesday, 10 March 2015: Nathalie Peregrine:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the 10th March 2015 George Kirikos:Hi everyone. Petter Rindforth:Hi George, thanks for your comments George Kirikos:Hi Petter. How are you today? val sherman:Hello everyone George Kirikos:Hi Val. How's it going? Mary Wong:Yes, thanks George, as always. Petter, if you don't mind, perhaps staff can explain why we first reached out to Mr Corell before the WG gets into the substance of the discussion? George Kirikos:Hi Mary. val sherman:Hi George! Doing well -- it's Wednesday:) George Kirikos:Hopefully the timechange didn't confuse people today. I wonder if anyone showed up an hour ago? Petter Rindforth:Please do, Mary. Mary Wong:@George, I hope not ... we didn't get any indication or worried emails so I'm thinking not! George Kirikos:lol Phil George Kirikos:Welcome Jay. Jay Chapman:Hi, George. Hello, everyone. Nathalie Peregrine:We have Jim Bikoff and David Maher on audio bridge only too George Kirikos:Hi Kathy. Kathy:Hi George - and All! val sherman:David Heasley also on audio bridge Nathalie Peregrine:Noted, thank you Val! Nathalie Peregrine:Gary Campbell has just joined the call Nathalie Peregrine:Imran Ahmed Shah has joined the call Mary Wong:@George, Sec 29 does say "other disputes of a private law character" which would cover situations other than contracts. George Kirikos:But you missed the last part, Mary, "to which the UN is a party." Mary Wong:Right, a party to a dispute or to a contract George Kirikos:We know this is an incorrect interpretation, given the UNIFEM case. George Kirikos:If that was the right interpretation, then they could simply compel them at present to undergo such an arbitration. Nathalie Peregrine:Paul Keating has joined the call Kathy:Someone in email mentioned it (George I think) but UN is of course registered as a trademark. Paul Keating:Sorry I am late. Kathy:In the US, it is registered multiple times as a design mark, but also as a text mark -- Reg. Serial No. 77273648 Paul Keating:Not really. I was counsel in Parvi.org and sued the City of Paris following a UDRP. The Texas court had no difficulty in granting a judgment in favor of the domain registrant. George Kirikos:WIPO's list of cases that went to court http://www.wipo.int/amc/en/domains/challenged/(not complete) George Kirikos:We know the World Bank brought a UDRP, etc. George Kirikos:(sorry for the coughing noise -- forgot to mute myself) Paul Keating:Pere, I am sorry but I completely disagree with his "conclusions" Immunity can be waived. This is clear from decades of cases in many jurisdicdtions. See in Texas teh case of Parvi.org George Kirikos:"On the contrary, their presence and their acronyms are so obvious that nobody can doubt the seriousness...." --- he's talking rainbows and unicorns here... George Kirikos:Do a Google search for "united nations scandals", and it's not always rainbows and unicorns. Paul Keating:Mary, Can we request funding from ICANN to hire competent counsel to give an opinion we can rely upon? Paul Keating:@Perre, why should we rely upon the IGOs to give us legal advice? George Kirikos:Are any of the US counsel here familiar with any US Supreme Court precedents, that discuss the scope of immunity, in the same manner as the Canadian Supreme Court case I referenced on the list? George Kirikos:I'm guessing it's very different from country to country, as the Supreme Court of Canada mentioned, as it depends on what immunities that nation granted (and there's no 'international law' in that regard). Mary Wong:@George, that's exactly it Paul Keating:Question: In teh context of a UDRP in which an IGO is the complainant, does the IGO's complaint and consent to a "Mutual Jurisdiction" act to waive the IGO's claims as to immunity? George Kirikos:If the GAC is asking us to *make* new law, then that really is beyond our scope. We're not a replacement for international treaties, etc. George Kirikos:Phil has his hand up. Paul Keating:This question arises ONLY when teh domain registrant files litigation or when the IGO is teh domain registrant and loses. George Kirikos:We talk about 'immunity' as if it's an absolute, which we know is not correct. George Kirikos:If an IGO has to defend a domain name dispute, it's not as though the courts will interfere with the IGO's mission, internal affairs, etc. Kathy: It would be good if the GAC's discussion on this issue could include not only Mason, but also our co-chairs (with notice to the whole of the WG) Mary Wong:@George, that too is true :) Modern int'l law tends to view sovereign immunity as a "restricted" rather than absolute concept, which means it is defined by national law recognition of the concept. George Kirikos:Perhaps we should start talking about 'functional immunity' (taken from the Supreme Court of Canada ruling), to narrow things further, instead of saying "sovereign immunity"? Jay Chapman:Phil, here's one of those - a Columbia Law Review article from October, 2010 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1692856), provides background & guidance on a general S.I. principle in the US, namely, when a state actor voluntarily / proactively participates in conduct designed to deprive someone else of their property via litigation (“litigation conduct”), such conduct makes itself a party to a "cause," and thereby the state effectively waives S.I. (Referencing Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002).) “Lapides thus rests on the idea that, although a bar on suing states is inherent in the Constitution, the advocates for state immunity did not intend for a state or an arm of the state to wield its immunity ‘to achieve unfair tactical advantages’.” Mary Wong:Should we get a small group of volunteers to work on the questions? Staff will start a draft but it does need WG input and sign off. Kathy:@Jay, interesting article. Who is the academic who wrote it? Tx! George Kirikos:It'd be nice if they were participating in the WG itself. Paul Keating:I Agree completely with Phil. Jay Chapman:@Kathy - Tejas N. Narechania Columbia University - Law School George Kirikos:Important point I noticed on page 4. David Maher (GNSO - RySG):a useful primer on US - foreign sovereign immunity at:http://www.dgslaw.com/images/materials/TMCN_PrimerForeignSovereignImmunity.p... Kathy:@Jay and mary: I wonder if Prof Narechania might be willing to help advise us? Mary Wong:@Jay, if it's the Narechania article you are citing, do note that it talks about state-federal relationships within the US (domestic) rathan than sov immunity as an international concept Mary Wong:Much of the US law review literature is about state-federal claims. Jay Chapman:Yes, Mary. I said "in the US." Should have said "within the US". Thank you George Kirikos:Are we going to finish the UDRP/URS comparison today, before we go? George Kirikos:(instead of finishing early) Paul Keating:@Mary, I do not read it as you do. It discusses the US Statute on soverign immunity in general Mary Wong:@Paul, thanks - yes it does and it's helpful to that extent. Mary Wong:There are US statutes specifically discussing sov imm Paul Keating:@Mary, in the US, sov. imm is per federal statute (FSIA) located at 28 USC §§ 1330 et seq. Philip Corwin:Thanks for the links, Jay and David. Good stuff. And thanks as always to George for all his finds. Mary Wong:There are several law review articles that discusss that statute - we can look again at them, of course. Jay Chapman:Yes, looking forward to reading the case Geoge linked and the primer David added. Jay Chapman:Thank you both George Kirikos:I didn't have any specific comments. George Kirikos:(on the URS/UDRP) Jay Chapman:@Kathy, seems like someone who might be able to help! Jay Chapman:(sorry, Kathy, was referring to Prof Narechania being someone who might be able to help.) Kathy:@Jay, great, that makes sense. Tx! Mary Wong:@Phil, yes - that's why the Council asked this WG to consider the issue (recognizing that UDRP is CP but URS is not) Mary Wong:@Jay @Kathy - what do you think we should ask Prof Narechania? I can reach out to him and know several faculty members at Columbia. George Kirikos:I think the Intellectual Property Constituency probably would agree that the scope of immunity is limited. George Kirikos:Otherwise, IGOs would be able to ask that a new dispute resolution procedure be created so that IGOs could take US TM holders to a a binding international arbitration. George Kirikos:(i.e. and not allow US TM-holders to defend their rights in US courts) Mary Wong:All, for background on why our WG was asked to do this, please see the Issue Report that set out our tasks. George Kirikos:Have a nice day, everybody. Kathy:That's nice comments from RySG! val sherman::) that's great Kathy:Bye All Philip Corwin:Bye all val sherman:Thanks All! Jay Chapman:Bye. Thank you!