Hello again everybody, I just wanted to follow up on Paul¹s, Petter¹s and George¹s recent emails with a few additional clarifications. APPLICABILITY TO EXISTING (LEGACY) DOMAINS * Our WG charter (based on the scoping done in the Preliminary and Final Issue Reports) acknowledges that the URS is not currently a Consensus Policy. As such, it only applies to new gTLDs. The UDRP (as a Consensus Policy) is binding on all ICANN Contracted Parties via the incorporation clause found in all registry and registrar agreements (new and existing). In considering a dispute resolution procedure (DRP) whether a ³modified UDRP/URS² or a ³new² DRP our WG will therefore have to bear in mind that if this is in fact the final recommendation(s), it may be in the form of a Consensus Policy binding on all contracted parties. UDRP vs URS vs New DRP * Our Charter also contemplates that we may distinguish between a UDRP and URS, so for instance the WG could decide to only amend one but not the other (among other options). This is a topic we will need to put on the WG agenda at a future meeting. * In the previous GNSO scoping effort (2007), draft language was in fact prepared for a possible separate DRP. We have included this document on the WG wiki: * Our WG Charter also contemplates that should a separate DRP be recommended, it must be narrowly tailored and applicable only to the protected organizations. ARTICLE 6ter PROCESS * As George and Paul have noted previously, protection under 6ter is not automatic, and even after the notification is filed a country/government can object to it. My understanding is that in many jurisdictions, 6ter protection is effective only if there is national law effectuating 6ter protection in that jurisdiction (e.g. by requiring a trademark registration or other form of statutory protection). The WG will likely want to address this as part of its discussion on standing in relation to any form of amended or new DRP. CREATING NEW LEGAL RIGHTS * This problem was acknowledged early on in the WIPO-2 Process (2001-2). However, do note that 6ter itself contains limitations in that: (1) protection of the IGO name/acronym is against use without authorization as a trademark or as elements of trademarks; AND (2) the use is of such a nature as to either suggest to or mislead the public as to a possible connection between the user and the organization concerned. In considering whether or not to amend the UDRP/URS or develop a new DRP, these limitations may be of assistance to our WG. * It is also open to the WG to develop specific and additional express defenses for any DRP (as was spelled out in the URS, for example). I realize these do not answer the many excellent questions that have been raised (nor are they supposed to), and do not address the tricky issues of immunity/appeal or costs, but I hope they are helpful as background nonetheless. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong@icann.org From: Paul Keating <paul@law.es> Date: Thursday, November 6, 2014 at 8:47 AM To: "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of Letter to Council regarding GAC Communique
Petter,
Creating some UDRP-like CRP for the domains at issue would create huge issues. In addition to issues noted by others:
1. It would apply on a domain level basis crossing all extensions.
2. It would require a change to the RAA and RA for each extension.
3. All of these Curative Rights mechanisms exist ONLY as a matter of contract (ICANN - Registrar (RAA) and Registrar - Registrant (RA)). Thus, any new system could not, as a matter of contract law, apply to existing domains until a new RAA is signed with every registrar and a new RA is signed with each registrant. Thus, a current registration for 10 years would mean the domain was exempt from the new CRP for 10 years until the domain was renewed.
4. The protection here exists ONLY as between members of the Paris Convention and/or WTO.
How would it apply to a registrant holding a registration per an agreement subject to the laws of a non-PC or non-WTO member state?
How would it apply to a registrant holding a registration per an agreement subject to the laws of a country who had objected to the particular name/symbol being included under 6ter?
5. Because the UDRP (and other CRPs) already apply "as to all" domains covered there under (e.g UDRP applies to ALL .COM domains), an amendment to the UDRP (and other CRPs) is required to exclude its application to domains falling under 6ter.
6. How is the registrar or,registrant to know that the new CRP is to apply to any particular domain? E.g. Is "expletive+IOC" included? What about "olympicburgers.com <http://olympicburgers.com> " or "OlympicPeninsulaCampingSites.com <http://OlympicPeninsulaCampingSites.com> "? It becomes even worse with acronyms.
I revert to something George K said in a prior email. ICANN has neither the right nor the obligation to create new legal rights. This was true during the heady drafting days of the UDRP and remains the case today IMHO.
The more I look the more I feel that neither the GAC nor the IGOs have really thought this through. I fully understand that many of the IGOs both do great things and unlike the RC or IOC have very little money. However, and at the risk of sounding crass, it seems more of a case of late-comers to the party wanting to be relieved of consequences of their tardiness.
This begs us to consider other alternatives such as informing them of the existence of .INT or even the possible creation of .IGO and advising that any new CRP be limited to those extensions.
Regards,
Paul Keating
On 06 Nov 2014, at 10:11 am, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
I am not sure if GAC as such has considered this to 100%, but I am sure that IGO¹s wants to avoid any changes of the UDRP. But, to refer to our previous discussion of ³new CRP vs modified version of the UDRP², what we talk about (if not add/change to the current UDRP) is not to create a completely new dispute resolution procedure for IGO¹s, but rather ³a modified version of UDRP² that will get a separate name and Regulation. Our ³IGOUDRP² can therefore well be the existing UDRP with some minor changes related to IGO¹s, and perhaps formally limited to IGO complainants if they are officially listed as IGO¹s - to avoid other organizations/companies to claim that they can use this ³new² system.
/ Petter
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5 november 2014, Phil Corwin <psc@vlaw-dc.com> skrev:
I guess we could drill down a bit on the substance/procedures matter although my guess is that they haven¹t even thought about it, and were meaning to say that they want a new CRP for IGOs rather than any modified version of the UDRP.
What do others think?
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From: Paul Tattersfield [mailto:gpmgroup@gmail.com] Sent: Wednesday, November 05, 2014 5:13 PM To: Phil Corwin Cc: Mason Cole; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of Letter to Council regarding GAC Communique
Mason's wording is very good. Do you guys think it would be worth building on Mason¹s wording to try and ascertain if the GAC's proposed prohibition on UDRP changes is for substantive changes only or if they are seeking to prohibit procedural changes too?
Yours sincerely,
Paul
On Wed, Nov 5, 2014 at 9:49 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
Mason:
Given that you have the delicate task of interfacing with the GAC, I think your proposed minor modifications are fine.
Best, Philip
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From: Mason Cole [mailto:mason@donuts.co] Sent: Wednesday, November 05, 2014 3:50 PM To: Phil Corwin Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] PLEASE RESPOND ASAP -- Revised Draft of Letter to Council regarding GAC Communique Importance: High
Phil --
In my capacity as liaison, let me suggest an edit or two in the bullet point in question that might give us better luck in getting some useful information from the GAC:
In regard to the issue of potential amendment of the UDRP It would be instructive to know the GAC¹s rationale for opposing any UDRP amendments as a means of providing IGOs with access to curative rights. Further, in opposing such amendments, does the GAC thus advise the GNSO to preclude any possible change to its "Mutual Jurisdiction" provisions to address specific sovereign immunity concerns of IGOs? Finally, if it is the GAC¹s position that an entirely new curative rights mechanism must be created, is it the GAC's understanding that the protections afforded to qualifying IGOs under Article 6ter of the Paris Convention would be the criteria for establishing standing under any dispute resolution procedure that may apply to IGOs?
On Nov 5, 2014, at 11:56 AM, Phil Corwin wrote:
WG members:
Please find attached a revised draft letter to the GNSO Council regarding the LA GAC Communique that reflects our discussion earlier today.
The only changes are to the second bullet point on page 3.
PLEASE LET US KNOW IF THESE CHANGES ARE ACCEPTABLE WITHIN THE NEXT 24 HOURS. WE WANT TO FORARD THIS LETTER TO THE COUNCILL ASAP TO MAXIMIZE THE POSSIBILITY THAT IT WILL BE ADDED TO THE AGENDA FOR ITS MEETING NEXT THURSDAY.
Thanks in advance.
Best, Philip
Philip S. Corwin, Founding Principal
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