Thank you Mary,

Having attended most of the call yesterday I am still bothered by the apparent desire to treat organizations differently.

It seems to me that there is a single standing threshold to be met here for any curative rights – namely a trademark.

Whether that mark exists as a function of registration under national law or under some vague concept of common law (which the UDRP panels have applied even as to complainants in civil law jurisdictions with no "common law" trademark jurisprudence) makes little or no difference be cause the existence of the trademark is the most basic of standing requirements. Treaties are not a separate form of law as treaties only have meaning as adopted by the national laws of those States who are signatories to the treaty. In short there is no "international executive or legislative branch". Thus, any protection granted by treaty must be in turn founded in the national laws of the signing states. Thus, bits of the Paris Convention is included as part of the Lanham Act.

If a complainant (whether an IGO, INGO, or any other person or entity) cannot establish this threshold then there should be no further discussion. To hold otherwise means that we are now embarking on creating a new curative rights mechanism with a new standing criteria. This would be highly problematic for the reasons we have all discussed and I do not believe doing so would be consistent with any mandate received.

So, it seems to me we can logically deal with each type of person/entity under the same standing requirement. We have no need to discriminate here.

This leaves us with two subsequent issues to face – immunity and costs.

IMMUNITY. As I noted in an earlier email, immunity is not absolute and a waiver in one instance is not a waiver for all instances. Thus, a State is immune unless it is engaging in activities not relevant to governance (e.g. Airlines). The government loses its immunity as to matters concerning the operation of the airline but not otherwise. In this case, the issue is registration of the domain name. The question is by whom.

Registration by INGO/IGO, etc. In this case the complainant has already agreed to the traditional RA which incorporates the UDRP and other provisions. I would argue that the act of registration already waived immunity issues at least to the extent concerning the contractual relationship (with the registrar). As far as any curative rights proceeding, that would automatically occur as a matter of law when the IGO/INGO filed a complaint and selected the Mutual Jurisdiction. However, that wavier occurred ONLY with respect to the nature of the action – a dispute over a domain. Courts are intelligent enough to see through an attempt to expand liability beyond that point. So, I really do not see this as a huge issue warranting a separate process. And, if it were, it could be aided by either amending the RULES of procedure clarifying that by consenting the the MJ, the consent is only as to the issues pertaining to domain name registration. This would not require changes to the the UDRP itself.

Registration by third party (protective rights of IGO/INGO). In the case in which a third party registers a domain the IGO/INGO believes to be infringing, existing mechanisms are sufficient. The IGO/INGO can participate with TMCH to the extent it otherwise qualifies. Again, if it holds no trademark rights, it has no standing any any curative rights mechanism. I see no reason to allow them special treatment to receive notice when they cannot do anything about the registration. Thus, if they qualify they can have appropriate notice and determine whether or not to file a claim using existing curative rights mechanisms.

COSTS. Someone has to pay for the process. Just because entities do good things does not remove them from economic reality. Nor does it give us the right to impose a "tax" on someone else to cover the costs that the IGO/INGO does not want to (or perhaps even cannot) pay. I am not expecting any of the ADR providers to jump up an volunteer – even WIPO which itself is an IGO who one would think should assist its "brethren". This leaves ICANN or the respondent. ICANN is a doubtful funding agent as it sets a very dangerous precedent for them. Again, the respondent should not be made to pay this amount and even if we attempted to impose it upon registrants they could easily escape it by registering their domains for 10 years prior to the effective date of any change (remember we are able only to impose this "new" system as a matter of contract via the RAA and the RA. So this returns us to the point that regardless of their good deeds, unless an IGO or INGO can get the law firm to donate time and filing fees, it simply cannot afford to take advantage of the process. This is nothing new and both claimants and defendants (even those with VERY good claims) are regularly denied access to the wheels of justice.

So, I return again to my original point which is why distinguish? It makes no sense unless we are embarking on the establishment of a new standing requirement. I have not heard any consensus views in favor of such a process. Hence the "consensus" to differentiate makes little sense from a logical perspective and will only make further work for someone down the road, potentially leading to inconsistencies that we will all regret.

Sincerely,

Paul Raynor Keating, Esq.

Law.es

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Dear all,

As noted on the WG call today, the consideration of INGO identifiers for additional/amended curative rights protection was supported by multiple GNSO constituencies during the prior PDP Working Group consensus process. As George noted in his original email (below), the primary rationale seems to have been that put forward by an NCSG representative; in some constituencies such support also saw some opposition (but not sufficient to overturn the final consensus conclusion).

As such, staff recommends that Stakeholder Group and Constituency representatives on this WG whose respective groups supported the inclusion and equivalent treatment of INGOs as for IGOs check back with those groups on the emerging consensus within this WG that INGOs be dropped from further consideration in this PDP. Please circulate your groups’ respective agreement or disagreement via email as soon as possible so that this WG can finalize its consideration of this question.

In relation to the Red Cross movement, staff recommends that this WG consider whether, in light of their protection under international treaties and multiple national laws, they – and for the same reason the International Olympic Committee – can be considered separately from the other INGOs who do not have the same extent of legal protections (as noted several times by the GAC).

To assist your review of this last point as well as for your convenient reference, staff has compiled the attached document which has the language excerpts from recent, relevant GAC Communiques that relate to IGO and Red Cross curative rights protections.

Thanks and 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: David Cake <dave@difference.com.au>
Date: Wednesday, October 29, 2014 at 3:07 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] The origins of how INGOs got into this process (as opposed to IGO)

I am OK with including the Red Cross, but based on the special case of the protection given to their identifiers under the Geneva Convention and associated national laws, rather than simply because it is an INGO.

I am not sure if those identifiers are relevant to this WG, but I'd rather err on the side of caution at this stage.

The Red Cross themselves seem unhappy with their consideration by this WG so far, but I think rather because of dissatisfaction with the approach taken so far rather than because they do not want curative rights mechanisms.

It may be best to leave the question open for the moment, until the issue can be addressed specifically, but in any case I think the inclusion of the ICRC should be considered separately to the issue of INGOs in general.

Regards

David

On 29 Oct 2014, at 8:41 am, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:

I agree with this conclusion.

The only question I have is if Red Cross in this respect shall be included, or if we shall and can proceed only with clear IGO's.

The latter would be the most clear way to deal with our task, and it is also more easy to create a special dispute resolution policy for IGO's only (as it seems what we shall focus on now, rather than amendments of URS and/or UDRP).

Looking forward to dicuss this further with you all tomorrow (or later on today, Oct 29).

Best,
Petter

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Fenix Legal KB
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Thank you

28 oktober 2014, Phil Corwin <psc@vlaw-dc.com> skrev:
As co-Chair I see a consensus forming.

We can discuss and decide on tomorrow's call.

Philip S. Corwin, Founding Principal
Virtualaw LLC
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

-----Original Message-----
From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David Cake
Sent: Monday, October 27, 2014 11:27 PM
To: Jim Bikoff
Cc: gnso-igo-ingo-crp@icann.org
Subject: Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into this process (as opposed to IGO)

I agree with Kathy, Osvaldo, Jim.
Unless there is a clear demonstration of a separate legal status for INGOs that was not addressed in previous WGs, we should drop it.

Regards

David

On 28 Oct 2014, at 12:00 am, Jim Bikoff <jbikoff@sgbdc.com> wrote:

I agree.

Jim

James L. Bikoff
Silverberg, Goldman & Bikoff, LLP
1101 30th Street, NW
Suite 120
Washington, DC 20007
Tel: 202-944-3303
Fax: 202-944-3306
jbikoff@sgbdc.com

-----Original Message-----
From: Kathryn Kleiman [mailto:kleiman@fhhlaw.com]
Sent: Monday, October 27, 2014 11:43 AM
To: Jim Bikoff; Paul Keating
Cc: gnso-igo-ingo-crp@icann.org
Subject: RE: [Gnso-igo-ingo-crp] The origins of how INGOs got into
this process (as opposed to IGO)

It is my opinion that we should focus on the IGOs and consider that the measures approved by the GNSO Council regarding the INGOs are sufficient.
Best regards,
Osvaldo Novoa

I agree with Osvaldo Novoa and Jim Bikoff on this - I think we should focus on IGOs and not INGOs. For if we address IGO and INGOs, then NGOs will want to be involved. Since it is a very loose area of existing protections, I recommend we stay with those of the clearest provable protections (and determining what the means) - IGOs.
Best,
Kathy

-----Original Message-----
From: gnso-igo-ingo-crp-bounces@icann.org
[mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Jim Bikoff
Sent: Wednesday, October 15, 2014 8:12 PM
To: Paul Keating
Cc: gnso-igo-ingo-crp@icann.org
Subject: Re: [Gnso-igo-ingo-crp] The origins of how INGOs got into
this process (as opposed to IGO)

We strongly agree with Osvaldo.

Jim Bikoff

Sent from my iPhone

On Oct 15, 2014, at 4:33 PM, Paul Keating <paul@law.es> wrote:

Hi all,

I know I have been absent from the last several calls (family issues), however, I feel that we should address both IGOs and INGOs. If we don't we run the risk of inconsistency and future conflict.

Regards,

Paul Keating

On 15 Oct 2014, at 9:03 pm, Novoa, Osvaldo <onovoa@antel.com.uy> wrote:

I think that the INGOs were sufficiently considered in the first policy and hat is now been revised. The revision arises from a request by the GAC, through the NGPC, to modify the decisions with regards to the IGOs acronyms and some on the Red Cross.
It is my opinion that we should focus on the IGOs and consider that the measures approved by the GNSO Council regarding the INGOs are sufficient.
Best regards,
Osvaldo Novoa

El 15/10/2014, a las 11:33, George Kirikos <icann@leap.com> escribi�:

Hi folks,

During today's conference call, the topic of how INGOs got into
this process was raised. Researching the mailing list of the prior
working group, I believe the origin was the message at:

http://forum.icann.org/lists/gnso-igo-ingo/msg00885.html

where one of the participants put forward the idea that:

"Accreditation by ECOSOC is equivalent to the IGO treaty
requirements and stands in fair stead to business oriented trademarks"

which, as Kristine noted in the chatroom during the call (I don't
think the transcript is available yet, but will be) is probably not
correct. i.e. her exact words were "I rather suspect it's much
harder to get included in a treaty than to get on the ECOSOC list..."

I agree with Kristine.

Anyhow, I thought it would be good to capture this "history", in
case we want to revisit this so-called "rationale" for adding INGOs.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/
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