Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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 <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dear WG members,
The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC¹s Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting.
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
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Paul: Thanks for the input. I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially". No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist. Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG. I hope that allays your concerns. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Dear WG members, The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting. 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<mailto:mary.wong@icann.org> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
Paul; Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs. So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution's specific directive on that) and consider IGOs only in our further deliberations. That is my personal view and other WG members are welcome to add their views. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul: Thanks for the input. I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially". No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist. Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG. I hope that allays your concerns. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Dear WG members, The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting. 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<mailto:mary.wong@icann.org> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date.
Thanks, So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis. Paul From: Phil Corwin <psc@vlaw-dc.com> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com>, Paul Keating <paul@law.es>, Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul;
Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs.
So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution¹s specific directive on that) and consider IGOs only in our further deliberations.
That is my personal view and other WG members are welcome to add their views.
Best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul:
Thanks for the input.
I hope you will be on today¹s call where we can touch on these matters further, But from my perspective as co-Chair I don¹t perceive any ³apparent desire to treat organizations differently and to limit the work of the WG artificially².
No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We¹ll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn¹t mean we would create a new curative rights process just for them so far as I¹m concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist.
Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council¹s mandate as expressed in the Resolution that established this WG.
I hope that allays your concerns.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High
Hello all,
I wanted to provide the following prior to the upcoming call.
I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants..
In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like.
I see three (3) issues here:
1. Standing (what it takes to participate in the curative process)
2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction)
3. Costs
STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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.
Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble.
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 <http://law.es/>
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es <mailto:Paul@law.es>
THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS.
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NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Mary Wong <mary.wong@icann.org> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dear WG members,
The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC¹s Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting.
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
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet. Sorry I missed the call today, so I hope I'm not repeating.... Kristine Sent from my iPhone On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: Thanks, So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis. Paul From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul; Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs. So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution’s specific directive on that) and consider IGOs only in our further deliberations. That is my personal view and other WG members are welcome to add their views. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul: Thanks for the input. I hope you will be on today’s call where we can touch on these matters further, But from my perspective as co-Chair I don’t perceive any “apparent desire to treat organizations differently and to limit the work of the WG artificially”. No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We’ll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn’t mean we would create a new curative rights process just for them – so far as I’m concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist. Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council’s mandate as expressed in the Resolution that established this WG. I hope that allays your concerns. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Dear WG members, The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC’s Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting. 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<mailto:mary.wong@icann.org> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
+1 Osvaldo Novoa Subgerente General Antel Guatemala 1075, Nivel 22 Montevideo, 11800 Uruguay Tel. +598 2928 6400 Fax. +598 2928 6401 -----Mensaje original----- De: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] En nombre de Dorrain, Kristine Enviado el: Miércoles, 05 de Noviembre de 2014 16:45 Para: Paul Keating CC: gnso-igo-ingo-crp@icann.org Asunto: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet. Sorry I missed the call today, so I hope I'm not repeating.... Kristine Sent from my iPhone On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: Thanks, So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis. Paul From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul; Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs. So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution's specific directive on that) and consider IGOs only in our further deliberations. That is my personal view and other WG members are welcome to add their views. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul: Thanks for the input. I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially". No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist. Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG. I hope that allays your concerns. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Dear WG members, The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting. 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<mailto:mary.wong@icann.org> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto: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 ________________________________ El presente correo y cualquier posible archivo adjunto está dirigido únicamente al destinatario del mensaje y contiene información que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. 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Agree. 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: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Novoa, Osvaldo Sent: Wednesday, November 05, 2014 1:50 PM To: 'Dorrain, Kristine'; Paul Keating Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November +1 Osvaldo Novoa Subgerente General Antel Guatemala 1075, Nivel 22 Montevideo, 11800 Uruguay Tel. +598 2928 6400 Fax. +598 2928 6401 -----Mensaje original----- De: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] En nombre de Dorrain, Kristine Enviado el: Miércoles, 05 de Noviembre de 2014 16:45 Para: Paul Keating CC: gnso-igo-ingo-crp@icann.org Asunto: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet. Sorry I missed the call today, so I hope I'm not repeating.... Kristine Sent from my iPhone On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: Thanks, So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis. Paul From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul; Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs. So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution's specific directive on that) and consider IGOs only in our further deliberations. That is my personal view and other WG members are welcome to add their views. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Paul: Thanks for the input. I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially". No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist. Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG. I hope that allays your concerns. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High Hello all, I wanted to provide the following prior to the upcoming call. I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants.. In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like. I see three (3) issues here: 1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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. Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble. 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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Dear WG members, The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting. 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<mailto:mary.wong@icann.org> _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto: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 ________________________________ El presente correo y cualquier posible archivo adjunto está dirigido únicamente al destinatario del mensaje y contiene información que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. Está prohibida cualquier utilización, difusión o copia de este e-mail por cualquier persona o entidad que no sean las específicas destinatarias del mensaje. ANTEL no acepta ninguna responsabilidad con respecto a cualquier comunicación que haya sido emitida incumpliendo nuestra Política de Seguridad de la Información This e-mail and any attachment is confidential and is intended solely for the addressee(s). If you are not intended recipient please inform the sender immediately, answering this e-mail and delete it as well as the attached files. Any use, circulation or copy of this e-mail by any person or entity that is not the specific addressee(s) is prohibited. ANTEL is not responsible for any communication emitted without respecting our Information Security Policy. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Just a note/reminder to follow up on Phil¹s points further upthread - in addition to the nature of IGOs being different from INGOs (in that IGOs are formed/constituted by governments) and the consequent issue regarding submission to a national jurisdiction (which does not exist for INGOs), the GAC advice given through several GAC Communiques has been directed toward providing IGOs with certain protections. Except for the Red Cross and the IOC, no other INGO has been the subject of similar advice from the GAC. (Please note that staff are not advocating for a different treatment of the two types of organizations; we¹re hoping that this reminder will be helpful to the WG as it continues to discuss the topic.) Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong@icann.org -----Original Message----- From: Jim Bikoff <jbikoff@sgbdc.com> Date: Wednesday, November 5, 2014 at 1:54 PM To: "Novoa, Osvaldo" <onovoa@Antel.com.uy>, "'Dorrain, Kristine'" <kdorrain@adrforum.com>, Paul Keating <Paul@law.es> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Agree.
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: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Novoa, Osvaldo Sent: Wednesday, November 05, 2014 1:50 PM To: 'Dorrain, Kristine'; Paul Keating Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
+1
Osvaldo Novoa
Subgerente General
Antel
Guatemala 1075, Nivel 22
Montevideo, 11800
Uruguay
Tel. +598 2928 6400
Fax. +598 2928 6401
-----Mensaje original----- De: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] En nombre de Dorrain, Kristine Enviado el: Miércoles, 05 de Noviembre de 2014 16:45 Para: Paul Keating CC: gnso-igo-ingo-crp@icann.org Asunto: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet.
Sorry I missed the call today, so I hope I'm not repeating....
Kristine
Sent from my iPhone
On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote:
Thanks,
So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis.
Paul
From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul;
Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs.
So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution's specific directive on that) and consider IGOs only in our further deliberations.
That is my personal view and other WG members are welcome to add their views.
Best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann .org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul:
Thanks for the input.
I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially".
No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist.
Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG.
I hope that allays your concerns.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@ icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High
Hello all,
I wanted to provide the following prior to the upcoming call.
I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants..
In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like.
I see three (3) issues here:
1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs
STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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.
Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble.
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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es>
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NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dear WG members,
The agenda for our next meeting, on Wednesday 5 November, is as follows:
1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting.
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<mailto:mary.wong@icann.org>
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto: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
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El presente correo y cualquier posible archivo adjunto está dirigido únicamente al destinatario del mensaje y contiene información que puede ser confidencial. Si Ud. no es el destinatario correcto por favor notifique al remitente respondiendo anexando este mensaje y elimine inmediatamente el e-mail y los posibles archivos adjuntos al mismo de su sistema. Está prohibida cualquier utilización, difusión o copia de este e-mail por cualquier persona o entidad que no sean las específicas destinatarias del mensaje. ANTEL no acepta ninguna responsabilidad con respecto a cualquier comunicación que haya sido emitida incumpliendo nuestra Política de Seguridad de la Información
This e-mail and any attachment is confidential and is intended solely for the addressee(s). If you are not intended recipient please inform the sender immediately, answering this e-mail and delete it as well as the attached files. Any use, circulation or copy of this e-mail by any person or entity that is not the specific addressee(s) is prohibited. ANTEL is not responsible for any communication emitted without respecting our Information Security Policy. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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Mary, I feel I am the only one beating this drum but,....I feel as if you all know something which I do not... If we deal with the IGOs and exclude the INGOs BUT then we include the IOC and the RC, we are begging for issues. It is far better to deal with them all. By referring to the standing issue (which we heard again today is not an issue for IOC or the RC) we can deal with ALL INGOs in one stroke of the pen without appearing to be inconsistent The COST issue would appear to be identical. The immunity issue is apparently unique to IGOs but that alone is an insufficient reason to limit our work artificially. Regards, Paul Keating
On 05 Nov 2014, at 11:07 pm, Mary Wong <mary.wong@icann.org> wrote:
Just a note/reminder to follow up on Phil¹s points further upthread - in addition to the nature of IGOs being different from INGOs (in that IGOs are formed/constituted by governments) and the consequent issue regarding submission to a national jurisdiction (which does not exist for INGOs), the GAC advice given through several GAC Communiques has been directed toward providing IGOs with certain protections. Except for the Red Cross and the IOC, no other INGO has been the subject of similar advice from the GAC.
(Please note that staff are not advocating for a different treatment of the two types of organizations; we¹re hoping that this reminder will be helpful to the WG as it continues to discuss the topic.)
Cheers Mary
Mary Wong Senior Policy Director Internet Corporation for Assigned Names & Numbers (ICANN) Telephone: +1 603 574 4892 Email: mary.wong@icann.org
-----Original Message----- From: Jim Bikoff <jbikoff@sgbdc.com> Date: Wednesday, November 5, 2014 at 1:54 PM To: "Novoa, Osvaldo" <onovoa@Antel.com.uy>, "'Dorrain, Kristine'" <kdorrain@adrforum.com>, Paul Keating <Paul@law.es> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Agree.
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: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Novoa, Osvaldo Sent: Wednesday, November 05, 2014 1:50 PM To: 'Dorrain, Kristine'; Paul Keating Cc: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
+1
Osvaldo Novoa
Subgerente General
Antel
Guatemala 1075, Nivel 22
Montevideo, 11800
Uruguay
Tel. +598 2928 6400
Fax. +598 2928 6401
-----Mensaje original----- De: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] En nombre de Dorrain, Kristine Enviado el: Miércoles, 05 de Noviembre de 2014 16:45 Para: Paul Keating CC: gnso-igo-ingo-crp@icann.org Asunto: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
I think that's right. We think INGOs have access. It may be that we decide IGOs do too, but we're not there yet.
Sorry I missed the call today, so I hope I'm not repeating....
Kristine
Sent from my iPhone
On Nov 5, 2014, at 12:39 PM, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote:
Thanks,
So that really only means that we conclude that INGOs already have access to the current system. I fail to see any additional work to justify treating them differently. One set may have particular concerns but they both fit within the framework we are trying to create for our analysis.
Paul
From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Wednesday, November 5, 2014 7:11 PM To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul;
Following up on the WG call that just ended, my response on the basis between differentiating between IGOs and INGOs is that the former are created by/composed of governments while the latter are private sector entities, albeit largely non-profit. Also, the issue of sovereign immunity does not have to be considered for IGOs.
So I believe those distinction would be sufficient to justify a decision by the WG to drop INGOs from further consideration (other than IOC and RCRC, given the Council resolution's specific directive on that) and consider IGOs only in our further deliberations.
That is my personal view and other WG members are welcome to add their views.
Best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann .org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, November 05, 2014 11:55 AM To: Paul Keating; Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul:
Thanks for the input.
I hope you will be on today's call where we can touch on these matters further, But from my perspective as co-Chair I don't perceive any "apparent desire to treat organizations differently and to limit the work of the WG artificially".
No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We'll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn't mean we would create a new curative rights process just for them - so far as I'm concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist.
Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council's mandate as expressed in the Resolution that established this WG.
I hope that allays your concerns.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@ icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High
Hello all,
I wanted to provide the following prior to the upcoming call.
I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants..
In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like.
I see three (3) issues here:
1. Standing (what it takes to participate in the curative process) 2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction) 3. Costs
STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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.
Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble.
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<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es>
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Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dear WG members,
The agenda for our next meeting, on Wednesday 5 November, is as follows:
1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC's Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting.
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<mailto:mary.wong@icann.org>
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5315 / Virus Database: 4189/8462 - Release Date: 10/27/14 Internal Virus Database is out of date. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto: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
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Thank you Phil, From: Phil Corwin <psc@vlaw-dc.com> Date: Wednesday, November 5, 2014 5:54 PM To: Paul Keating <paul@law.es>, Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: RE: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Paul:
Thanks for the input.
I hope you will be on today¹s call where we can touch on these matters further, But from my perspective as co-Chair I don¹t perceive any ³apparent desire to treat organizations differently and to limit the work of the WG artificially².
No decision has been made to treat IGOs differently. The WG will be looking at the extent to which IGOs have already registered trademarks and whether there are any meaningful barriers to other IGOs doing so. We¹ll also be objectively analyzing the sovereign immunity claim. And even were we to decide that the UDRP/URS were for some reason unsuited to or not useable by IGOs, that doesn¹t mean we would create a new curative rights process just for them so far as I¹m concerned, any such new DRP would have to be based in globally recognized rights because ICANN is not in the business of creating new legal rights, and we have yet to determine whether such alternate rights actually exist.
Finally, the draft letter to the GNSO Council responding to the GAC Communique illustrates that we shall not be letting the GAC artificially limit the scope of our work; we intend to faithfully and objectively carry out the Council¹s mandate as expressed in the Resolution that established this WG.
I hope that allays your concerns.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, November 05, 2014 9:35 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November Importance: High
Hello all,
I wanted to provide the following prior to the upcoming call.
I am still bothered by the apparent desire to treat organizations differently and to limit the work of the WG artificially (IMO). I am concerned doing so will lead to (a) further work, (b) inconsistent conclusions and treatment, and (c) an eventual watering down of the dispute process and the rights of registrants..
In reviewing the following please remember that the value of domain names is continuing to increase and they will become more prominently used by serious businesses. In other words, we are no longer in the days of presuming the problem is squatters and the like.
I see three (3) issues here:
1. Standing (what it takes to participate in the curative process)
2. Immunity issues (the apparent waiver caused by the complainant's selection pif the Mutual Jurisdiction)
3. Costs
STANDING: 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. In other words, the MJ provision could limit any potential exposure of the IGO/INGO. This could be done without requiring 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.
Erosion of Standards: I remain concerned as well that by separating out various entities we run the risk of treating them inconsistently. The tendency here may be to have the rules for each entity group be slightly different. This will lead to confusion and conflict. The UDRP has already become so watered down that the language of the 1st element (which is a standard term of art for trademark disputes) has become nothing more than a "standing" hurdle that a worm could cross without much trouble.
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 <http://law.es/>
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es <mailto:Paul@law.es>
THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS.
Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Mary Wong <mary.wong@icann.org> Date: Wednesday, November 5, 2014 12:45 AM To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: [Gnso-igo-ingo-crp] Agenda and document for review, for WG call on Wednesday 5 November
Dear WG members,
The agenda for our next meeting, on Wednesday 5 November, is as follows: 1. Roll Call/Updates to SOI 2. Discussion of questions to be sent to the GNSO Council/GAC-GNSO Liaison for follow up on the GAC¹s Los Angeles Communique (see attached draft document from the WG Co-Chairs) 3. Discussion of possible distinction between: (a) IGOs & INGOs; (b) the Red Cross and IOC compared to other INGOs 4. Next steps WG Co-Chair Petter Rindforth will chair the meeting.
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
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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participants (6)
-
Dorrain, Kristine -
Jim Bikoff -
Mary Wong -
Novoa, Osvaldo -
Paul Keating -
Phil Corwin