Dear all,

Here is the proposed agenda for our next call, scheduled for this Thursday 16 November at 1700 UTC:

1. Roll call/updates to SOI
2. Review feedback from open community session at ICANN60, and GAC Communique
3. Discuss possible relevance of the Nominet appeal process
4. Next steps – process for determining final consensus call and timeline

For Agenda Item #2, please review the transcript and/or recording of the ICANN60 session here: https://schedule.icann.org/event/CbFM/gnso-igo-ingo-curative-rights-protections-pdp-wg-face-to-face; as well as the GAC Communique from Abu Dhabi here: https://gac.icann.org/advice/communiques/public/gac-60-abu-dhabi-communique.pdf (the section relevant to IGO protections is under Section VII, on pages 9-10).

For Agenda Item #3, please refer to the links in the message below, with particular reference to Paragraph 20 of the Nominet Dispute Resolution Policy (staff is attempting to find more specific background/information on the appeals process referenced by Paul Keating).

Finally, in terms of a timeline to completion, the co-chairs and staff are proposing the following steps:

• Staff will aim to complete a draft Final Report for circulation by 24 November – to allow everyone a week to review the changes that were made from the Initial Report
• The draft can be discussed on the next scheduled call after the one being held this week – this will be 30 November (since 23 November is the Thanksgiving holiday in the USA)
• The Working Group may take 2-3 meetings to review the updated language of the draft, especially focusing on the text of the proposed final recommendations. The formal Consensus Call for all proposed final recommendations can be launched in mid-December or at the latest before Christmas, closing in early January 2018.
• The Final Report to the GNSO Council can be submitted by end-January 2018.

Thanks and cheers

Mary

From: Mary Wong <mary.wong@icann.org>
Date: Friday, November 10, 2017 at 01:41
To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>
Subject: FW: IGO "appeals" in ICANN CRP WG

Dear all,

Please find below an email from Paul Keating (forwarded to this mailing list with his permission), concerning the possibility that the appeals process deployed by Nominet may be helpfully considered by the Working Group in relation to Options A-C. You may recall that Paul’s suggestion was brought up during the group’s open community session at ICANN60, so we are providing his full email for further context.

In addition, you may wish to review the following links:

• Nominet FAQ on its dispute resolution process: https://www.nominet.uk/domains/resolving-uk-domain-disputes-and-complaints/
• Paragraph 20 of the Policy: https://s3-eu-west-1.amazonaws.com/nominet-prod/wp-content/uploads/2017/10/17150434/final-proposed-DRS-policy.pdf
• Paragraph 18 of the Procedure: https://nominet-prod.s3.amazonaws.com/wp-content/uploads/2015/11/DRS_Procedure.pdf

Staff is attempting to locate more specific details and provisions for the Nominet appeals procedure, and we will forward that information if we are able to find it.

Thanks and cheers

Mary

From: Paul Keating <paul@law.es>
Date: Wednesday, November 1, 2017 at 22:18
To: "Beckham, Brian" <brian.beckham@wipo.int>
Cc: Phil Corwin <psc@vlaw-dc.com>, "petter.rindforth@fenixlegal.eu" <petter.rindforth@fenixlegal.eu>, Mary Wong <mary.wong@icann.org>
Subject: [Ext] Re: IGO "appeals" in ICANN CRP WG

Brian,

I will not make the call most likely but please share this with the group publicly.

As i said, my first position is that should an IGO successfully move to dismiss a post-UDRP action based upon SI, the underlying UDRP should be vitiated.  

My distant second position is a post UDRP Nominet-like appeals process.  The appeals panelists should be carefully selected and I would require specific training and a more “law” based process that avoids the watered down analysis now prevalent in the UDRP, PARTICULARLY when it comes to the 1st element which would require a more traditional trademark infringement test honoring the actual language of the Policy.

Btw, I had suggested an alternative based upon my perception that IGOs concern was mainly to do with possible monetary judgments.   The suggestion was to prohibit a SI claim if the respondent in turn waived any claim to monetary damages.  This would be a small price to pay as most such judgments are virtually uncollectible at any rate.  This was not adopted largely because it would work only if the IGO signed a separate waiver as a part of the UDRP process - an unlikely prospect.

I hope you are enjoying AD.

Be well,

Paul Keating

Sent from my iPad

On 1 Nov 2017, at 11:35, Beckham, Brian <brian.beckham@wipo.int> wrote:

Hi Paul,

Picking up on your comment at the WIPO Workshop last week, we mentioned to IGO WG co-chairs Phil and Petter, your comment about (and if I understood, receptiveness to) the possibility of a "Nominet-like" appeals avenue for IGOs in a curative ("UDRP-like") dispute resolution mechanism.

We (WIPO) are in a separate conflicting meeting today, but on the suggestion of the WG co-chairs, wonder if you  might see fit to raise your comment/question in today's IGO WG session? 

I am also including the co-chairs and ICANN staff on this email in case they would see fit to forward this email to the WG.

(Of course, as I stated, most recently at the IGO WG session in Johannesburg, this specific "appeals avenue" would not eclipse court options generally.) 

Best regards,

Brian