Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
First I would like things to calm down here. Second, I want to address some comments by Phil indicating that having a rule that resulted in vitiating the UDRP decision if the IGO successfully sought dismissal on sovereign immunity grounds somehow treated them differently than other prevailing complainants in connection with post-UDRP litigation under 4(k). This is simply not what was, or continues to be, suggested. The rule is limited to the situation in which an IGO obtains dismissal as a result of a sovereign immunity claim. It does not vitiate the UDRP decision in any other instance (for example in the situation in which the court dismisses the litigation because tearer is no independent basis for a claim - e.g. The yoyo decision int ehUK). There appears to be a further myth that the Mutual Jurisdiction certification exposes them to judicial claims in connection with a 4(k) proceeding. This is simply not the case. As a case in point I refer to the attached case in which the following was stated: MARCHEX SALES, INC., v. TECNOLOGIA BANCARIA, S.A., IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Case 1:14-cv-01306-LO-JFA Document 17 Filed 05/21/15
In filing its UDRP complaint, Tecnologia agreed that it would "submit, with respect to any challenges that may be made by the Respondent to a decision by the Administrative Panel to transfer the domain name that is the subject of this Complaint, to the jurisdiction of the courts at the location of the principal office of the concerned registrar." (Compl. ~ 16). Plaintiff alleges that this court has personal jurisdiction over the defendant because of this agreement "to submit to jurisdiction of the registrar in connection with a challenge of a UDRP decision ordering a transfer of the Domain Names." (Compl. ~ 3).
While it is clear that the defendant has consented to the jurisdiction of this court for the purposes of challenging the WIPO panel's decision to transfer the subject domain names in the "Mutual Jurisdiction" clause of the UDRP complaint (Com pl. ~ 16), the relief sought by the plaintiff in the complaint before this court and in the motion for default judgment goes far beyond a "challenge" of the WIPO panel's decision. Plaintiff is not only seeking a declaration that its registration and use of the subject domain names is lawful and proper and the domain names should not be transferred to the defendant as ordered by the WIPO panel, it is also seeking an award of damages and attorney's and costs under the Lanham Act.3
As discussed during the hearing on May I, 2015, plaintiff has not alleged any facts that would support a finding of personal jurisdiction over this foreign defendant for claims other than a direct challenge to the WIPO panel's decision to transfer the domain names- the only claim that the defendant agreed to have litigated in this forum. To allow claims other a challenge to whether a domain name should be transferred in accordance with a WIPO decision to be brought against a complainant in a WIPO proceeding based on the mandatory provision that the complainant submit to jurisdiction of the courts at the location of the principal registrar of the domain name would greatly and unfairly expand the scope of the agreement and the exposure that any complainant could face by filing a UDRP complaint.
The United States Supreme Court has consistently held that "a party can be forced to arbitrate only those issues it specifically agreed to submit to arbitration." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995). The Fourth Circuit has also recognized that whether a party has agreed to arbitrate an issue is a matter of contract interpretation and that a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir. 1996) (quoting United Steelworkers of Am. v. Warrior Gulf Navigation Co., 363 U.S. 574, 582 (1960)). In a similar vein, the UDRP requires the parties to submit to arbitration only claims concerning the registration of a domain name and a party to a "mutual jurisdiction" clause like the one required in the UDRP complaint should not be forced to submit to the jurisdiction of a foreign forum for any claims that it has not agreed to submit. In the mutual jurisdiction clause relied on by the plaintiff, the agreement is limited to a challenge of a decision to the transfer of the domain name. It is not a broadly worded agreement whereby the complainant agrees to a specific jurisdiction for the resolution of all claims between the parties to be litigated, or even an agreement that all claims arising out of or related to the UDRP complaint to be litigated in the forum. The language is specific; it involves only a challenge to a panel's decision to transfer a domain name. To find that such a provision would subject a party to anything more than a challenge to the panel's decision would be unfair and would be inconsistent with the due process clause of the U.S. Constitution. While it was not required to address the issue directly, in a similar action the Fourth Circuit has recognized the argument made by a defendant that a court lacks jurisdiction regarding any cause of action other than the challenge to the panel's decision in the UDRP proceeding. Barcelona.com, 330 F.3d at 623.
For these reasons, the undersigned magistrate judge recommends a finding that the court has subject matter jurisdiction over this action, that the court has jurisdiction over only the claim concerning the challenge to the WIPO panel's decision, and that venue is proper in this court for that claim.
The court went on to disallow any damage claims - limiting its decision only to a transfer and award of costs. I continue to STRENUOUSLY oppose any creation of a special system for IGOs (or others) and incorporate my prior email on this subject which set forth the lack of any evidence of problem with the existing system. I believe no action is required as we set forth in the initial report. As the only compromise, I will only support a proposed change that incorporates the following within the UDRP which would be a part of the certification to be agreed to by the Complainant. If Complainant is an NGO, then Complainant further certifies and agrees In the event of any post-UDRP litigation brought by a respondent concerning the domain name
The NGO successfully seeks dismissal on the basis of sovereign immunity And the litigation is dismissed as a result of the granting of the NGO¹s motion to dismiss The UDRP decision will be vitiated.
Again, this applies in a very limited number of possible situations involving only NGOs and only then when the case is dismissed because the NGO asserted sovereign immunity. Paul Keating On 11/17/17, 8:26 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote:
George:
This co-chair categorically reject your reckless charge that I have engaged in "fear-mongering".
I regard that as a personal affront. You really should apologize.
Please stick to the substance ands stop making reckless and unfounded allegations about others' motivations.
As for revelation of how any member voted on our preliminary consensus call, those members who wish to reveal how they marked their ballots are free to do so -- but we will not violate reasonable expectations of privacy, especially when it now clear that support for Option C can expose one to reckless charges.
Philip
-----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Friday, November 17, 2017 2:17 PM To: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like:
"Fair and balanced" (supporting C) "DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C.
Individual Working Group members especially those who provided specific comments as part of their poll response are invited to add any relevant background and further thoughts to this email.
Thanks and cheers
Mary
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Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Agreed and further it is only an implicit waiver of jurisdictional immunity and as such it does not (attempt to) bind the IGOs to any implied waiver of immunity from execution. Even before we get to that stage, the justifications for any immunity have not been articulated. The IGOs are initiating the action through their own volition. They are looking to intervene in a private contract. I can not find another forum in any jurisdiction, on any matter (not just domain names), that would allow an IGO to initiate proceedings and subsequently claim immunity in any follow-on proceedings. Absent UDRP there are two possible ways the immunity question could come before a court: (a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter. I appreciate this is a very precise legal point and even Prof. Swaine confused this in his reasoning* but we as a working group have no excuse. Further the IGOs have failed to present any evidence that even if we build a system that gives them every name they ask for automatically it will still not solve the problem the IGOs are looking to solve. So I have two questions: (a) If the IGOs are not “entitled to immunity” after initiating proceedings in any other forum why should they be in UDRP? (b) If the changes are not going to have any impact on the problems the IGOs are looking to solve why should we even consider making a completely new process? Yours sincerely, Paul. *In 3. Discussion (Page 8) Swaine says: "The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. An IGO’s immunity would be most clearly at issue if the IGO had not itself initiated any related judicial proceeding—since that would risk waiving any immunity to which it would be entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction provision were absent. This might be the case, for example, where a domain-name registrant has sought a declaratory judgment in relation to some actual or potential infringement by an IGO. Although that is not the scenario of principal concern here, imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP and its concessions. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial."
+1000 Nor has there been ANY evidence (whatsoever) that any IGO has forgone undertaking any UDRP because of its fear of waiver of its asserted Sovereign Immunity. Indeed there is evidence of a number of instances in which IGOs have in fact pursued claims under the UDRP. There is simply no factual basis for considering what the IGOs and GAC are presumably requesting. What is being proposed with the new ³IGO arbitration² is spending thousands of hours of time to develop a ³solution² for something that has not been identified as a problem. I feel like I am hearing a young child scream ³Daddy I want, Daddy I want² while seeing a horse for the first time and my having to repeatedly explain that it simply would not lit in our apartment. Paul From: Paul Tattersfield <gpmgroup@gmail.com> Date: Tuesday, November 21, 2017 at 10:10 PM To: Paul Keating <paul@law.es> Cc: "Corwin, Philip" <pcorwin@verisign.com>, "icann@leap.com" <icann@leap.com>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Agreed and further it is only an implicit waiver of jurisdictional immunity and as such it does not (attempt to) bind the IGOs to any implied waiver of immunity from execution.
Even before we get to that stage, the justifications for any immunity have not been articulated.
The IGOs are initiating the action through their own volition.
They are looking to intervene in a private contract.
I can not find another forum in any jurisdiction, on any matter (not just domain names), that would allow an IGO to initiate proceedings and subsequently claim immunity in any follow-on proceedings.
Absent UDRP there are two possible ways the immunity question could come before a court:
(a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered
In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter.
I appreciate this is a very precise legal point and even Prof. Swaine confused this in his reasoning* but we as a working group have no excuse.
Further the IGOs have failed to present any evidence that even if we build a system that gives them every name they ask for automatically it will still not solve the problem the IGOs are looking to solve.
So I have two questions:
(a) If the IGOs are not ³entitled to immunity² after initiating proceedings in any other forum why should they be in UDRP?
(b) If the changes are not going to have any impact on the problems the IGOs are looking to solve why should we even consider making a completely new process?
Yours sincerely,
Paul.
*In 3. Discussion (Page 8) Swaine says:
"The core question is whether an IGO is ³entitled to immunity,² but the baseline assumptions may be disaggregated. An IGO¹s immunity would be most clearly at issue if the IGO had not itself initiated any related judicial proceedingsince that would risk waiving any immunity to which it would be entitled, including to counterclaims18and the UDPRP¹s Mutual Jurisdiction provision were absent. This might be the case, for example, where a domain-name registrant has sought a declaratory judgment in relation to some actual or potential infringement by an IGO. Although that is not the scenario of principal concern here, imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP and its concessions. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial."
Thank you for confirming my concerns on my second question Paul, I would be grateful if anyone who supports option ‘C’ could take the time to comment also. If Phil or Peter as co-chairs or any other working group member (especially anyone who supports option C), could take the time to comment on the first question I would also be very grateful. Perhaps the question was not clear so let’s try it a different way: Absent UDRP there are two possible ways the immunity question could come before a court: (a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter. If the UDRP is to afford the same protections as a court would, then UDRP needs to take into account what would happen if a TM holder brought a UDRP against an IGO for possible TM infringement. Why hasn’t the working group taken any time to consider these protections for IGOs? Is the working group remiss in not considering this matter? Yours sincerely, Paul. On Wed, Nov 22, 2017 at 11:04 AM, Paul Keating <Paul@law.es> wrote:
+1000
Nor has there been ANY evidence (whatsoever) that any IGO has forgone undertaking any UDRP because of its fear of waiver of its asserted Sovereign Immunity.
Indeed there is evidence of a number of instances in which IGOs have in fact pursued claims under the UDRP.
There is simply no factual basis for considering what the IGOs and GAC are presumably requesting.
What is being proposed with the new “IGO arbitration” is spending thousands of hours of time to develop a “solution” for something that has not been identified as a problem.
I feel like I am hearing a young child scream “Daddy I want, Daddy I want” while seeing a horse for the first time and my having to repeatedly explain that it simply would not lit in our apartment.
Paul
From: Paul Tattersfield <gpmgroup@gmail.com> Date: Tuesday, November 21, 2017 at 10:10 PM To: Paul Keating <paul@law.es> Cc: "Corwin, Philip" <pcorwin@verisign.com>, "icann@leap.com" < icann@leap.com>, "gnso-igo-ingo-crp@icann.org" < gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Agreed and further it is only an implicit waiver of jurisdictional immunity and as such it does not (attempt to) bind the IGOs to any implied waiver of immunity from execution.
Even before we get to that stage, the justifications for any immunity have not been articulated.
The IGOs are initiating the action through their own volition.
They are looking to intervene in a private contract.
I can not find another forum in any jurisdiction, on any matter (not just domain names), that would allow an IGO to initiate proceedings and subsequently claim immunity in any follow-on proceedings.
Absent UDRP there are two possible ways the immunity question could come before a court:
(a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered
In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter.
I appreciate this is a very precise legal point and even Prof. Swaine confused this in his reasoning* but we as a working group have no excuse.
Further the IGOs have failed to present any evidence that even if we build a system that gives them every name they ask for automatically it will still not solve the problem the IGOs are looking to solve.
So I have two questions:
(a) If the IGOs are not “entitled to immunity” after initiating proceedings in any other forum why should they be in UDRP?
(b) If the changes are not going to have any impact on the problems the IGOs are looking to solve why should we even consider making a completely new process?
Yours sincerely,
Paul.
*In 3. Discussion (Page 8) Swaine says:
"The core question is whether an IGO is “entitled to immunity,” but the baseline assumptions may be disaggregated. An IGO’s immunity would be most clearly at issue if the IGO had not itself initiated any related judicial proceeding—since that would risk waiving any immunity to which it would be entitled, including to counterclaims18—and the UDPRP’s Mutual Jurisdiction provision were absent. This might be the case, for example, where a domain-name registrant has sought a declaratory judgment in relation to some actual or potential infringement by an IGO. Although that is not the scenario of principal concern here, imagining that scenario usefully isolates the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP and its concessions. If such immunity is minimal or uncertain, then any compromises required by the UDRP loom less large; if the IGO would otherwise be entitled to immunity, however, its potential sacrifice seems more substantial."
participants (2)
-
Paul Keating -
Paul Tattersfield