Re: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
Dear Mr. Drazek, I just wanted to second the comments made by Mr. Kirkos in his email below. I was indeed the person who came up with the "vitiation" idea and proposed it to the group. I also support the position that there was no capture and that Mr. Kirkos' referencs to the factual development of the various proposals was correct. The idea that there was "capture" came up only after it became clear tha the WG did not support by concensus any form of creating an independent ADR/arbitration right for these limited number of potential claimants. I was told many times that the concensus decision would not "fly" because they were not politically acceptable by the IGO/NGOs and by their supporters on the GAC. I disagreed with those statements then and I trust we are not witnessing them yet again. I can also confirm that notwithstanding repeated invitations, the IGO/NGOs simply refused to participate in the WG. The were indeed asked repeatedly. A review of the number of real and potential claims held by the IGO/NGO groups is telling based upon the number of UDRP/formal litigation matters actually having been filed over the past 20+ years - close to 0 statistically. Indeed there are a limited number of IGO/NGOs who have in fact brought claims in their own names - a point which notwithstanding the limited number - shows that it is not a huge issue. Personally speaking I see here a clear attempt at "capture" wherein the IGO/NGO crowd is - not liking what was developed - trying to achieve an end-run. 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 On 11/29/18, 3:01 PM, "Gnso-igo-ingo-crp on behalf of Drazek, Keith via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote: Hello Mr. Kirikos, I have received your email and forwarded it to the full GNSO Council list. No decisions were made by the Council during our meeting today. Regards, Keith Drazek GNSO Chair -----Original Message----- From: George Kirikos <icann@leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek@verisign.com>; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine@icann.org>; Mary Wong <mary.wong@icann.org>; Steve Chan <steve.chan@icann.org>; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Hello, [please forward this email to the rest of GNSO Council] On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list: https://mm.icann.org/pipermail/council/2018-November/022091.html Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information. 1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations. In addition, there **already*** was a "small group" convened with IGO participation, see: https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/ which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list: https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html "This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement." IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said. 2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP: "The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization." The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions). Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018): https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj... (which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed) As was properly noted in the letter to the ICANN Board of August 16, 2018: https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-bo... the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions). 3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14: https://community.icann.org/download/attachments/60491579/transcript%20IGO%2... Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.***** And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added) Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added) So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine. This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)] 4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond): https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html "Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement] Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council." Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote. 5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council. The history of the UDRP is documented at: https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en "The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added) Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system. The White Paper goes on to say: "Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added) Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants. The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this). Indeed, if one goes to the Staff report at the time: http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm "DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report; Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added) The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5. Furthermore, to understand the development of UDRP's Section 4(k), see: http://www.dnso.org/dnso/notes/19990729.NCwga-report.html " The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report. One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). " [This history was pointed out in the RPM PDP recently, see: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ] So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on). Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations. In conclusion, GNSO Council should adopt all the recommendations in the final report. If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hello Mr. Keating, Thanks for your email. Your input is welcome as the newly constituted 2018-2019 GNSO Council continues our deliberations. I have forwarded your email to the GNSO Council mailing list. Regards, Keith Drazek GNSO Chair -----Original Message----- From: Paul Keating <Paul@law.es> Sent: Thursday, November 29, 2018 11:26 AM To: Drazek, Keith <kdrazek@verisign.com>; icann@leap.com; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; nathalie.peregrine@icann.org; mary.wong@icann.org; steve.chan@icann.org; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Dear Mr. Drazek, I just wanted to second the comments made by Mr. Kirkos in his email below. I was indeed the person who came up with the "vitiation" idea and proposed it to the group. I also support the position that there was no capture and that Mr. Kirkos' referencs to the factual development of the various proposals was correct. The idea that there was "capture" came up only after it became clear tha the WG did not support by concensus any form of creating an independent ADR/arbitration right for these limited number of potential claimants. I was told many times that the concensus decision would not "fly" because they were not politically acceptable by the IGO/NGOs and by their supporters on the GAC. I disagreed with those statements then and I trust we are not witnessing them yet again. I can also confirm that notwithstanding repeated invitations, the IGO/NGOs simply refused to participate in the WG. The were indeed asked repeatedly. A review of the number of real and potential claims held by the IGO/NGO groups is telling based upon the number of UDRP/formal litigation matters actually having been filed over the past 20+ years - close to 0 statistically. Indeed there are a limited number of IGO/NGOs who have in fact brought claims in their own names - a point which notwithstanding the limited number - shows that it is not a huge issue. Personally speaking I see here a clear attempt at "capture" wherein the IGO/NGO crowd is - not liking what was developed - trying to achieve an end-run. 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 On 11/29/18, 3:01 PM, "Gnso-igo-ingo-crp on behalf of Drazek, Keith via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote: Hello Mr. Kirikos, I have received your email and forwarded it to the full GNSO Council list. No decisions were made by the Council during our meeting today. Regards, Keith Drazek GNSO Chair -----Original Message----- From: George Kirikos <icann@leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek@verisign.com>; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine@icann.org>; Mary Wong <mary.wong@icann.org>; Steve Chan <steve.chan@icann.org>; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list Hello, [please forward this email to the rest of GNSO Council] On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list: https://mm.icann.org/pipermail/council/2018-November/022091.html Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information. 1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations. In addition, there **already*** was a "small group" convened with IGO participation, see: https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/ which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list: https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html "This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement." IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said. 2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP: "The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization." The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions). Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018): https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj... (which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed) As was properly noted in the letter to the ICANN Board of August 16, 2018: https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-bo... the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions). 3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14: https://community.icann.org/download/attachments/60491579/transcript%20IGO%2... Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.***** And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added) Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added) So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine. This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)] 4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond): https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html "Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement] Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council." Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote. 5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council. The history of the UDRP is documented at: https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en "The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added) Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system. The White Paper goes on to say: "Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added) Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants. The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this). Indeed, if one goes to the Staff report at the time: http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm "DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report; Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added) The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5. Furthermore, to understand the development of UDRP's Section 4(k), see: http://www.dnso.org/dnso/notes/19990729.NCwga-report.html " The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report. One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). " [This history was pointed out in the RPM PDP recently, see: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ] So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on). Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations. In conclusion, GNSO Council should adopt all the recommendations in the final report. If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi folks, [please forward this to the GNSO Council mailing list] I read that Brian Beckham of WIPO is claiming that "false statements" are being made with regards to the IGO PDP, according to his email at: https://mm.icann.org/pipermail/council/2018-December/022106.html The single statement he complains about is arguably true, namely that WIPO and the OECD have been the primary IGOs in the GAC that have been pushing this issue. I'm confident that if the GAC mailing list was public, we'd see the same thing. At ICANN 63, where there was a public GAC meeting that discussed this topic: https://63.schedule.icann.org/meetings/901596 https://static.ptbl.co/static/attachments/192334/1540588197.pdf?1540588197 Jonathan Passaro (of the OECD) spoke (starting on page 4 of the PDF transcript) and Brian Beckham (of WIPO) spoke (starting at the bottom of page 7), but not a single other IGO spoke to the issue (a few reps from national governments did speak briefly in response to their statements). It's ironic that Mr. Beckham is suddenly concerned about "false statements", given that he tried to distort reality with his own demonstrably false statement at ICANN 60, see: https://icann60abudhabi2017.sched.com/event/CbFM/gnso-igo-ingo-curative-righ... https://schd.ws/hosted_files/icann60abudhabi2017/67/Transcript%20IGO%20INGO%... We were discussing the number of UDRP cases that had been brought by IGOs (on page 25). "Philip Corwin: I just want to add to that. I note in a chat room that one of our working group members noted that there have been fewer than a dozen UDRPs filed by IGOs in the last 20 years." (it was I who had pointed that out in the Adobe Connect chat room) But Brian Beckham then falsely claimed (on page 26) that the number was actually only 2! "Brian Beckham: Thank you. Brian Beckham from WIPO for the record. Just a small point of clarification, I think - I’m not on the chat, but this reference to less than a dozen, if my memory serves, it was actually two cases that have been identified over almost the past 20 years, for whatever that’s worth, for historical context. Correct, two." This was clearly false. Footnote 5 at the bottom of pages 79 and 80 of the initial report of the PDP identified various UDRPs brought by IGOs: https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-c... and it was certainly more than 2 (and less than a dozen): "Respectively, in International Mobile Satellite Organisation and Inmarsat Ventures Limited (formerly known as Inmarsat Holdings Limited) v. Domains, EntreDomains Inc. and Brian Evans, D2000-1339 (WIPO Nov. 30, 2000); International Bank For Reconstruction and Development d/b/a The World Bank v. Yoo Jin Sohn, D2002-0222 (WIPO May 7, 2002); and Bank for International Settlements v. BFIS, D2003-0984 (WIPO March 1, 2004), Bank for International Settlements v. BIS, D2003-0986 (WIPO March 2, 2004), Bank for International Settlements v. James Elliott, D2003-0987 (WIPO March 3, 2004), Bank for International Settlements v. G.I Joe, D2004-0570 (WIPO (Sept. 27, 2004), Bank for International Settlements v. BIS, D2004-0571 (WIPO Oct. 1, 2004), and Bank for International Settlements v. Fortune Nwaiwu, D2004-0575 (WIPO Oct. 1, 2004). A few other matters are catalogued in the Index of WIPO UDRP Panel Decisions, http://www.wipo.int/amc/en/domains/search/legalindex/, as involving IGOs. In one, involving the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a decentralized agency of the European Union, the complaint was denied due to its failure to establish rights to marks or services. European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) v. Virtual Clicks / Registrant ID:CR36884430, Registration Private Domains by Proxy, Inc., D2010-0475 (WIPO July 7, 2010). In another, involving UNITAID, an IGO hosted by the World Health Organization (WHO), trademark rights were assigned by a fiduciary agreement to a private enterprise, which registered them on behalf of the WHO and UNITAID. Lenz & Staehelin Ltd v. Christopher Mikkelsen, D2012-1922 (WIPO Jan. 8, 2013)." Mr. Beckham had commented on that report, so would have been aware of these cases. Instead, he made up his own numbers and asserted that they were "Correct." I pointed this out the same day, on November 1, 2017 on the IGO PDP mailing list: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html but Mr. Beckham has made no correction that I know of to his obvious false statement. Indeed, WIPO has a history of trying to distort reality to further their aims. They maintain a list of "UDRP Related Court cases" at: https://www.wipo.int/amc/en/domains/challenged/ When unlisted court cases were brought to WIPO's attention that belonged on that page, e.g. https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-May/003058.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-May/003059.html they literally *changed* the selection criteria in order to prevent those cases from being added to the list (where the registrant went to court and had a positive outcome), in order to distort the truth about court challenges to UDRP decisions. They even went further, and inexplicably *removed* a case they had previously listed that still qualified under the "new criteria", which my company brought and won in court, as was documented at: https://mm.icann.org/pipermail/gnso-rpm-wg/2018-June/003147.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-June/003148.html This case was removed after I voted against Mr. Beckham as a co-chair in the RPM PDP, presumably as a form of retaliation. Ultimately, the IGO PDP working group disproved the false narrative being pushed by some voval IGOs that they don't have access to existing RPMs and that they require their own special procedures, by documenting the fact that IGOs have *already* successfully utilized the UDRP (see the list of cases noted above). Then, the IGO PDP working group went above and beyond the call of duty and made Recommendation #3, which highlighted that IGOs have the ability to elect to have a complaint filed by an assignee, agent or licensee under the current policies (thus not requiring any change to consensus policies, except to educate further on how best to utilize existing procedures). In fact, one UDRP has already been filed using that method, by a law firm on behalf of UNITAID, see: https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2012-1922 as was noted in the footnote cited above. Any IGO that is adamant about "immunity" can avoid the issue entirely, simply by finding someone else to bring the complaint on their behalf. Furthermore, IGOs could still complaint to law enforcement and to registrars, just like anyone else. If one really thinks about matters deeply, the only scenario that an IGO should be concerned about is where they have brought a UDRP/URS dispute that is *not meritorious*, which is decided incorrectly by the panel, and which the registrant (rightly) wishes to have determined via the courts. (A scenario where the registrant *loses* in court on the merits doesn't harm the IGO.) Only a scenario where the registrant *wins* in court would harm the IGO. That's the scenario where the IGO (like any other party to a dispute) indeed *should* be harmed, where they initiated an unmeritorious claim, and ultimately lost. ICANN should not be interfering with this natural outcome, which exists for all parties to disputes. IGOs are not so "special" that they should be able to initiate disputes with complete impunity, when those cases are not meritorious. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Nov 29, 2018 at 11:58 AM Drazek, Keith <kdrazek@verisign.com> wrote:
Hello Mr. Keating,
Thanks for your email. Your input is welcome as the newly constituted 2018-2019 GNSO Council continues our deliberations.
I have forwarded your email to the GNSO Council mailing list.
Regards, Keith Drazek GNSO Chair
-----Original Message----- From: Paul Keating <Paul@law.es> Sent: Thursday, November 29, 2018 11:26 AM To: Drazek, Keith <kdrazek@verisign.com>; icann@leap.com; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; nathalie.peregrine@icann.org; mary.wong@icann.org; steve.chan@icann.org; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
Dear Mr. Drazek,
I just wanted to second the comments made by Mr. Kirkos in his email below.
I was indeed the person who came up with the "vitiation" idea and proposed it to the group. I also support the position that there was no capture and that Mr. Kirkos' referencs to the factual development of the various proposals was correct. The idea that there was "capture" came up only after it became clear tha the WG did not support by concensus any form of creating an independent ADR/arbitration right for these limited number of potential claimants. I was told many times that the concensus decision would not "fly" because they were not politically acceptable by the IGO/NGOs and by their supporters on the GAC. I disagreed with those statements then and I trust we are not witnessing them yet again.
I can also confirm that notwithstanding repeated invitations, the IGO/NGOs simply refused to participate in the WG. The were indeed asked repeatedly.
A review of the number of real and potential claims held by the IGO/NGO groups is telling based upon the number of UDRP/formal litigation matters actually having been filed over the past 20+ years - close to 0 statistically. Indeed there are a limited number of IGO/NGOs who have in fact brought claims in their own names - a point which notwithstanding the limited number - shows that it is not a huge issue.
Personally speaking I see here a clear attempt at "capture" wherein the IGO/NGO crowd is - not liking what was developed - trying to achieve an end-run.
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
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On 11/29/18, 3:01 PM, "Gnso-igo-ingo-crp on behalf of Drazek, Keith via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote:
Hello Mr. Kirikos,
I have received your email and forwarded it to the full GNSO Council list.
No decisions were made by the Council during our meeting today.
Regards, Keith Drazek GNSO Chair
-----Original Message----- From: George Kirikos <icann@leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek@verisign.com>; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine@icann.org>; Mary Wong <mary.wong@icann.org>; Steve Chan <steve.chan@icann.org>; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
Hello,
[please forward this email to the rest of GNSO Council]
On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list:
https://mm.icann.org/pipermail/council/2018-November/022091.html
Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information.
1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations.
In addition, there **already*** was a "small group" convened with IGO participation, see:
https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/
which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list:
https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html
"This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement."
IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said.
2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP:
"The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization."
The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions).
Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018):
https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj...
(which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed)
As was properly noted in the letter to the ICANN Board of August 16, 2018:
https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-bo...
the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions).
3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14:
https://community.icann.org/download/attachments/60491579/transcript%20IGO%2...
Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.*****
And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent.
So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added)
Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added)
So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine.
This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016):
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html
where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea:
"George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did."
The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html
I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)]
4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html
It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond):
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html
"Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement]
Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council."
Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html
when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote.
5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council.
The history of the UDRP is documented at:
https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en
"The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added)
Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system.
The White Paper goes on to say:
"Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added)
Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants.
The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this).
Indeed, if one goes to the Staff report at the time:
http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm
"DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report;
Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added)
The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5.
Furthermore, to understand the development of UDRP's Section 4(k), see:
http://www.dnso.org/dnso/notes/19990729.NCwga-report.html
" The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report.
One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). "
[This history was pointed out in the RPM PDP recently, see:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ]
So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on).
Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations.
In conclusion, GNSO Council should adopt all the recommendations in the final report.
If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
P.S. [Please also forward this to the GNSO Council Mailing list] To document the "false narrative" being pushed by some vocal IGOs, see for example the post in the "small group" mailing list from the OECD rep: https://mm.icann.org/pipermail/discussion-igo-rc/2017-May/000156.html "As we have discussed at length, the mutual jurisdiction provision of the UDRP in fact prevents IGOs from using the UDRP." As was mentioned in the prior email, this was completely debunked after the working group consulted the historical record of UDRP cases, and showed that in fact multiple IGOs had already successfully utilized the existing procedure. This was noted on that mailing list later that day: https://mm.icann.org/pipermail/discussion-igo-rc/2017-May/000159.html Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Dec 4, 2018 at 11:28 AM George Kirikos <icann@leap.com> wrote:
Hi folks,
[please forward this to the GNSO Council mailing list]
I read that Brian Beckham of WIPO is claiming that "false statements" are being made with regards to the IGO PDP, according to his email at:
https://mm.icann.org/pipermail/council/2018-December/022106.html
The single statement he complains about is arguably true, namely that WIPO and the OECD have been the primary IGOs in the GAC that have been pushing this issue. I'm confident that if the GAC mailing list was public, we'd see the same thing.
At ICANN 63, where there was a public GAC meeting that discussed this topic:
https://63.schedule.icann.org/meetings/901596 https://static.ptbl.co/static/attachments/192334/1540588197.pdf?1540588197
Jonathan Passaro (of the OECD) spoke (starting on page 4 of the PDF transcript) and Brian Beckham (of WIPO) spoke (starting at the bottom of page 7), but not a single other IGO spoke to the issue (a few reps from national governments did speak briefly in response to their statements).
It's ironic that Mr. Beckham is suddenly concerned about "false statements", given that he tried to distort reality with his own demonstrably false statement at ICANN 60, see:
https://icann60abudhabi2017.sched.com/event/CbFM/gnso-igo-ingo-curative-righ... https://schd.ws/hosted_files/icann60abudhabi2017/67/Transcript%20IGO%20INGO%...
We were discussing the number of UDRP cases that had been brought by IGOs (on page 25).
"Philip Corwin: I just want to add to that. I note in a chat room that one of our working group members noted that there have been fewer than a dozen UDRPs filed by IGOs in the last 20 years."
(it was I who had pointed that out in the Adobe Connect chat room)
But Brian Beckham then falsely claimed (on page 26) that the number was actually only 2!
"Brian Beckham: Thank you. Brian Beckham from WIPO for the record. Just a small point of clarification, I think - I’m not on the chat, but this reference to less than a dozen, if my memory serves, it was actually two cases that have been identified over almost the past 20 years, for whatever that’s worth, for historical context. Correct, two."
This was clearly false. Footnote 5 at the bottom of pages 79 and 80 of the initial report of the PDP identified various UDRPs brought by IGOs:
https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-c...
and it was certainly more than 2 (and less than a dozen):
"Respectively, in International Mobile Satellite Organisation and Inmarsat Ventures Limited (formerly known as Inmarsat Holdings Limited) v. Domains, EntreDomains Inc. and Brian Evans, D2000-1339 (WIPO Nov. 30, 2000); International Bank For Reconstruction and Development d/b/a The World Bank v. Yoo Jin Sohn, D2002-0222 (WIPO May 7, 2002); and Bank for International Settlements v. BFIS, D2003-0984 (WIPO March 1, 2004), Bank for International Settlements v. BIS, D2003-0986 (WIPO March 2, 2004), Bank for International Settlements v. James Elliott, D2003-0987 (WIPO March 3, 2004), Bank for International Settlements v. G.I Joe, D2004-0570 (WIPO (Sept. 27, 2004), Bank for International Settlements v. BIS, D2004-0571 (WIPO Oct. 1, 2004), and Bank for International Settlements v. Fortune Nwaiwu, D2004-0575 (WIPO Oct. 1, 2004). A few other matters are catalogued in the Index of WIPO UDRP Panel Decisions, http://www.wipo.int/amc/en/domains/search/legalindex/, as involving IGOs. In one, involving the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a decentralized agency of the European Union, the complaint was denied due to its failure to establish rights to marks or services. European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) v. Virtual Clicks / Registrant ID:CR36884430, Registration Private Domains by Proxy, Inc., D2010-0475 (WIPO July 7, 2010). In another, involving UNITAID, an IGO hosted by the World Health Organization (WHO), trademark rights were assigned by a fiduciary agreement to a private enterprise, which registered them on behalf of the WHO and UNITAID. Lenz & Staehelin Ltd v. Christopher Mikkelsen, D2012-1922 (WIPO Jan. 8, 2013)."
Mr. Beckham had commented on that report, so would have been aware of these cases. Instead, he made up his own numbers and asserted that they were "Correct."
I pointed this out the same day, on November 1, 2017 on the IGO PDP mailing list:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html
but Mr. Beckham has made no correction that I know of to his obvious false statement.
Indeed, WIPO has a history of trying to distort reality to further their aims. They maintain a list of "UDRP Related Court cases" at:
https://www.wipo.int/amc/en/domains/challenged/
When unlisted court cases were brought to WIPO's attention that belonged on that page, e.g.
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002940.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-May/003058.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-May/003059.html
they literally *changed* the selection criteria in order to prevent those cases from being added to the list (where the registrant went to court and had a positive outcome), in order to distort the truth about court challenges to UDRP decisions.
They even went further, and inexplicably *removed* a case they had previously listed that still qualified under the "new criteria", which my company brought and won in court, as was documented at:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-June/003147.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-June/003148.html
This case was removed after I voted against Mr. Beckham as a co-chair in the RPM PDP, presumably as a form of retaliation.
Ultimately, the IGO PDP working group disproved the false narrative being pushed by some voval IGOs that they don't have access to existing RPMs and that they require their own special procedures, by documenting the fact that IGOs have *already* successfully utilized the UDRP (see the list of cases noted above).
Then, the IGO PDP working group went above and beyond the call of duty and made Recommendation #3, which highlighted that IGOs have the ability to elect to have a complaint filed by an assignee, agent or licensee under the current policies (thus not requiring any change to consensus policies, except to educate further on how best to utilize existing procedures). In fact, one UDRP has already been filed using that method, by a law firm on behalf of UNITAID, see:
https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2012-1922
as was noted in the footnote cited above. Any IGO that is adamant about "immunity" can avoid the issue entirely, simply by finding someone else to bring the complaint on their behalf. Furthermore, IGOs could still complaint to law enforcement and to registrars, just like anyone else.
If one really thinks about matters deeply, the only scenario that an IGO should be concerned about is where they have brought a UDRP/URS dispute that is *not meritorious*, which is decided incorrectly by the panel, and which the registrant (rightly) wishes to have determined via the courts. (A scenario where the registrant *loses* in court on the merits doesn't harm the IGO.)
Only a scenario where the registrant *wins* in court would harm the IGO. That's the scenario where the IGO (like any other party to a dispute) indeed *should* be harmed, where they initiated an unmeritorious claim, and ultimately lost. ICANN should not be interfering with this natural outcome, which exists for all parties to disputes. IGOs are not so "special" that they should be able to initiate disputes with complete impunity, when those cases are not meritorious.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Thu, Nov 29, 2018 at 11:58 AM Drazek, Keith <kdrazek@verisign.com> wrote:
Hello Mr. Keating,
Thanks for your email. Your input is welcome as the newly constituted 2018-2019 GNSO Council continues our deliberations.
I have forwarded your email to the GNSO Council mailing list.
Regards, Keith Drazek GNSO Chair
-----Original Message----- From: Paul Keating <Paul@law.es> Sent: Thursday, November 29, 2018 11:26 AM To: Drazek, Keith <kdrazek@verisign.com>; icann@leap.com; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; nathalie.peregrine@icann.org; mary.wong@icann.org; steve.chan@icann.org; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-crp@icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
Dear Mr. Drazek,
I just wanted to second the comments made by Mr. Kirkos in his email below.
I was indeed the person who came up with the "vitiation" idea and proposed it to the group. I also support the position that there was no capture and that Mr. Kirkos' referencs to the factual development of the various proposals was correct. The idea that there was "capture" came up only after it became clear tha the WG did not support by concensus any form of creating an independent ADR/arbitration right for these limited number of potential claimants. I was told many times that the concensus decision would not "fly" because they were not politically acceptable by the IGO/NGOs and by their supporters on the GAC. I disagreed with those statements then and I trust we are not witnessing them yet again.
I can also confirm that notwithstanding repeated invitations, the IGO/NGOs simply refused to participate in the WG. The were indeed asked repeatedly.
A review of the number of real and potential claims held by the IGO/NGO groups is telling based upon the number of UDRP/formal litigation matters actually having been filed over the past 20+ years - close to 0 statistically. Indeed there are a limited number of IGO/NGOs who have in fact brought claims in their own names - a point which notwithstanding the limited number - shows that it is not a huge issue.
Personally speaking I see here a clear attempt at "capture" wherein the IGO/NGO crowd is - not liking what was developed - trying to achieve an end-run.
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
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On 11/29/18, 3:01 PM, "Gnso-igo-ingo-crp on behalf of Drazek, Keith via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote:
Hello Mr. Kirikos,
I have received your email and forwarded it to the full GNSO Council list.
No decisions were made by the Council during our meeting today.
Regards, Keith Drazek GNSO Chair
-----Original Message----- From: George Kirikos <icann@leap.com> Sent: Thursday, November 29, 2018 2:01 AM To: Drazek, Keith <kdrazek@verisign.com>; rafik.dammak@gmail.com; pam.little@alibaba-inc.com; Nathalie Peregrine <nathalie.peregrine@icann.org>; Mary Wong <mary.wong@icann.org>; Steve Chan <steve.chan@icann.org>; darcy.southwell@endurance.com; mpsilvavalent@gmail.com Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Response to "Procedural options for IGO-INGO Curative Rights PDP" email sent to GNSO Council mailing list
Hello,
[please forward this email to the rest of GNSO Council]
On the eve of the November 29, 2018 12:00 UTC GSNO Council meeting (not observing the usual 10 day advanced notice rule for documents), ICANN staff sent various documents related to the IGO-INGO Curative Rights PDP to the GNSO Council mailing list:
https://mm.icann.org/pipermail/council/2018-November/022091.html
Given the limited time to review it, I can't comment on all of it at this time. However, it once again appears to present a false and one-sided view of the work of the PDP working group, in an attempt to undermine its recommendations. Furthermore, it excludes important information.
1. In the 11 page document titled "SUMMARY PAPER: STATUS, ISSUES & NEXT STEPS FOR THE IGO-INGO CURATIVE RIGHTS POLICY DEVELOPMENT PROCESS (PDP) FINAL REPORT", the first option (on page 2), namely engaging in a facilitated discussion with the GAC, ignores the fact that the the working group already fully considered the input that was provided by the IGOs (i.e. "GAC" is really just a handful of IGOs within the GAC, i.e. OECD & WIPO). Furthermore, page 2 ignores the fact that registrants subject to a UDRP or URS would also be parties who are "most affected" by recommendations.
In addition, there **already*** was a "small group" convened with IGO participation, see:
https://mm.icann.org/mailman/listinfo/discussion-igo-rc https://mm.icann.org/pipermail/discussion-igo-rc/
which had the participation of WIPO, OECD, and both co-chairs (at the time, before Phil Corwin resigned in 2018) of the IGO PDP, among others. Indeed, the author of the 11 page document (ICANN Staff member Mary Wong, as per the metadata of the PDF) was the first person who posted on that mailing list:
https://mm.icann.org/pipermail/discussion-igo-rc/2017-January/000000.html
"This list has been created as a result of the conference call of 20 December 2016 among representatives of the ICANN Board, GAC and GNSO. As a participant on that call, you have been automatically subscribed to this list, which is intended for group discussion of the proposal for a facilitated dialogue between the GAC and the GNSO, to resolve the outstanding issues on protections for IGO acronyms, the names of the Red Cross National Societies, and certain names and acronyms of the international Red Cross movement."
IGOs have had their say, numerous times. All that another "facilitated dialogue" would do is attempt to mislead and misinform folks who are not subject matter experts, attempt to re-argue their past failed arguments, and furthermore exclude those who actually fully understand all the issues (i.e. the current members of the PDP working group who invested 4 years of research and analysis on the topic to come up with their consensus recommendations). IGOs have nothing new to say that hasn't already been said.
2. For option 5 (page 4) the document mentions concerns about "lack of representation", "differences between leadership and members", and "dominance by a specific group". Frankly, those are frivolous arguments that have been raised at a late date by those who failed to convince the rest of the working group as to the merits of their positions. One should immediately notice that those arguments are being made only with regards to Recommendation #5 -- if there truly was "capture", then certainly Recommendations #1 through #4 would similarly be impacted by the asserted "lack of representation", etc. Furthermore, the current co-chair and the former co-chair had every opportunity, by Section 3.2 of the working group guidelines, to determine whether "capture" had occurred, but not once did they claim it during the PDP:
"The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization."
The assertions of "capture" began only *after* the co-chairs found themselves to be in a small minority and opposed to the consensus that the rest of the working group successfully achieved. After the first anonymous and non-transparent poll had been conducted in October 2017 which was consistent with the option favoured by the co-chairs, the co-chairs expressed no concerns whatsoever about "capture". It was only long afterwards, after the fully transparent procedures (as a result of my first Section 3.7 appeal) established and documented that the co-chairs were in fact in a small minority, and the consensus was for an option other than that supported by the then co-chairs, that the "capture" argument was put forth (as an attempt to undermine the Final Report's conclusions).
Lastly, take a look at the documented positions and constituencies of each working group member who actually participated in the Consensus Call (as of June 12, 2018):
https://docs.google.com/spreadsheets/d/e/2PACX-1vQgB2sY5AgaBZUHsHJJPLIsAwTFj...
(which wasn't put into the final report; later deliberations solidified the actual consensus levels as reported in the final report, as text was tweaked to satisfy various concerns that had been expressed)
As was properly noted in the letter to the ICANN Board of August 16, 2018:
https://www.icann.org/en/system/files/correspondence/igo-ingo-wg-to-icann-bo...
the working group had a broad cross-section of members from various constituencies. It's preposterous to suggest, for example, that David Maher and Crystal Ondo (both of the Registries Stakeholder Group, same as Phil Corwin) or Reg Levy (of the Registrars Stakeholders Group) were involved in a "capture" somehow, in supporting Recommendation #5 (Option #1). I can't speak for them, but presumably they made their best assessment of the facts and analysis, and supported the recommendations that were found to be best, just like every other member of the PDP. Those claiming "capture" should explain how 2 members of the Registries Stakeholders Group (same constituency as Phil Corwin) and 1 member of the Registrars Stakeholders Group were part of the consensus that is being attacked by some. It's obvious that they can't do this, completely destroying the credibility of those claiming "capture". Instead, they try to smear the group as a while with unsupportable claims. If there really was voting in "blocs", explain why both Reg Levy and myself happened to be *opposed* to Recommendation #4 (being in a minority on that one, against the consensus) -- this too is not consistent with "capture" (i.e. it's clear people made their own decisions).
3. It's no secret that I've been highly critical of ICANN staff in this PDP. The bottom of page 6 is yet another example of misinformation coming from ICANN Staff. The "Notes on #1" asserts that I (without naming me) "proposed what became Recommendation #5" -- that is a complete falsehood. In fact, it was Paul Keating who was the one who had first proposed Option #1 (which became the consensus Recommendation #5), back when the matter initially arose, as fully documented on July 21, 2016, starting on page 14:
https://community.icann.org/download/attachments/60491579/transcript%20IGO%2...
Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then ****the UDRP decision itself should become a nullity.*****
And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent.
So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, ****then the UDRP decision becomes a nullity.*****" (emphasis added)
Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - ****under your scenario, the UDRP decision is also vitiated.****" (emphasis added)
So, initially it was being called "nullification", and I believe Phil Corwin was the first one to use the term "vitiate." Regardless, it was Paul Keating's proposal, not mine.
This history is further documented by the Adobe Connect Chat Room Transcript for the following week's call PDP call (July 28, 2016):
http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html
where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea:
"George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did."
The correct attribution (to Paul Keating) is certainly known by ICANN staff, as it was pointed out before, including on November 22, 2017 on the mailing list, see:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000943.html
I think ICANN Staff intentionally tried to associate Option #1 as being my idea in an attempt to undermine it, trying to link its origins to someone who is personally disliked by some members of the GNSO Council, and who would vote against it on that basis alone. [Indeed, Option #1 (what is currently Recommendation #5's consensus) wasn't even my personal favourite option! (Option #7 was, which was unfortunately arrived at too late to be considered)]
4. The "Note on #6" (page 10) concerning things like "dynamics" and "process challenges" is highly one-sided. In fact, the Section 3.7 appeals were meritorious, which folks would quickly realize if they actually read the background documents. The questions raised about transparency of process were 100% valid, as the anonymous voting violated the Working Group Guidelines, justifying the first section 3.7 appeal. The 2nd Section 3.7 appeal was put forth to ensure we had adequate time to prepare our final report and to reach consensus, see:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001254.html
It too was meritorious, since we finally did reach consensus on all 5 recommendations (overcoming the efforts of those who tried to manipulate the process). And, the fact that GNSO Council now wants to gain "specific insights into deliberations" (Option 6, page 4 of the document) is strong evidence that the Final Report was inadequate, a point I made repeatedly in arguing for more time to add more info documenting our rationale (ICANN staff did a horrible job summarizing our debates and arguments). In fact, I personally disavowed the Final Report in July, because it wasn't up to snuff (even after I had been apparently the only one to have proofread what was submitted, as Staff delivered a draft report at a very late date with little time to review and respond):
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001379.html
"Furthermore, I do not intend to read or amend the draft Final Report any longer, while this Section 3.7 appeal is in effec. I appear to be the only person who has even attempted to read it and improve it, yet today is 1 day before it's due! We have to stop pretending that the Final Report is in good shape and ready for submission, and I won't be part of that pretending any longer. [I'll rely on my own words in my own minority statement]
Specifically, I *disavow* the current draft Final Report. While I believe the Recommendations themselves have been accurately recorded, the supporting rationales and other text in that document are not in good shape yet for submission to GNSO Council."
Any "process challenges" that GNSO Council should be concerned with should be instead be directed to the continued attempts by those opposed to the recommendations to manipulate the outcome of this PDP's work which is now in Council's hands. This manipulation has been going on for a long time, including the rushed final report (it was rushed supposedly because we were told it needed to be voted upon in July 2018; I think it was rushed instead in order to make it more easily attacked by those opposed to its conclusions). I pointed this out repeatedly, including in early July:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001385.html
when the report's recommendations weren't put to a vote like it was supposed to be, as evidenced by the motion that was presented in advance of the GNSO Council meeting that didn't include a vote.
5. It's crucial to have studied the origins of the UDRP, to understand Consensus Recommendation #5, yet none of what follows is in the Final Report or in subsequent documents provided to Council.
The history of the UDRP is documented at:
https://www.icann.org/resources/pages/schedule-2012-02-25-en https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en
"The proposals were designed to provide trademark holders with the ****same rights**** they have in the physical world, to ensure transparency, and to guarantee a dispute resolution mechanism *****with resort to a court system.***** " (emphasis added)
Notice the "same rights" and "with resort to a court system." It can't get much clearer than that. Recommendation #5 provides exactly that, the same rights and resort to the court system.
The White Paper goes on to say:
"Further, it should be clear that whatever dispute resolution mechanism is put in place by the new corporation, that mechanism should be directed toward disputes about cybersquatting and cyberpiracy and not to settling the disputes between two parties with legitimate competing interests in a particular mark. ****Where legitimate competing rights are concerned, disputes are rightly settled in an appropriate court.**** (emphasis added)
Again, Recommendation #5 accomplishes that, by ensuring that it is up to the appropriate courts to decide on the merits. IGOs ignore these facts, and are happy to instead push for binding arbitration in unaccountable kangaroo arbitration panels as being "good enough" for registrants.
The issues surrounding access to the courts for a decision on the merits was well understood at the time the UDRP was created nearly 20 years. Section 4(k) of the UDRP and the corresponding URS rules were an attempt to accomplish that, but they are not entirely effective (Recommendation #5 fixes this).
Indeed, if one goes to the Staff report at the time:
http://archive.icann.org/en/meetings/santiago/udrp-staff-report.htm
"DNSO Recommendation 4(b): The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from "appealing" the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report;
Staff Suggestion on DNSO Recommendation 4(b): The staff agrees that both registrants and challengers should have ****equal opportunities**** to "appeal" an outcome of the administrative dispute-resolution procedure. Some commentators have suggested that the DNSO-recommended proposal would afford challengers significantly superior "appeal" rights. The staff notes that this result would be a clearly unintended consequence of the DNSO proposal. The staff believes that this concern can and should be fully addressed in the implementation of the dispute-resolution policy, which should explicitly negate this possibility." (emphasis added)
The possible inability to have the access to the courts for a decision on the underlying merits due to immunity issues for IGOs was another "unintended consequence", which would be fully corrected by the Consensus Recommendation #5.
Furthermore, to understand the development of UDRP's Section 4(k), see:
http://www.dnso.org/dnso/notes/19990729.NCwga-report.html
" The need to address the situation wherein a domain name registrant who has been unsuccessful in the ADR process is effectively prevented from appealing the result in a court due to the absence of a cause of action in contract, tort, regulation, statute or constitutional right. It was noted that there is an imbalance in the WIPO process in that an unsuccessful complainant will always be able to judicially challenge an ADR result by virtue of the jurisdiction of the registry being imposed over the dispute by the WIPO Report.
One suggested solution to this problem which WG-A agrees merits further consideration, is the requirement that a complainant enter into a contract with the registrant (or the arbitral institution in a jurisdiction that recognizes third party beneficiary agreements) as a condition of initiating ADR, that provides for consent to be sued in the jurisdiction where the registrant is ordinarily resident, and in the jurisdiction where the subject registrar is located (assuming both parties do not agree to voluntarily contract out of the right to subsequent litigation). "
[This history was pointed out in the RPM PDP recently, see:
https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003444.html https://mm.icann.org/pipermail/gnso-rpm-wg/2018-October/003449.html ]
So, in other words, Consensus Recommendation #5 is entirely consistent with the history and purpose of the UDRP, and fixes issues that were not anticipated correctly by the current existing policy. Recommendation #5 puts both parties back in the same legal position they'd be had the UDRP/URS not taken place (which interfered with the access to the courts to render a final decision on the matter), to ensure that it's the courts that have the final say on the merits of a dispute, without interference by ICANN or its policies. It makes sure that ICANN is not granting either side any better outcome or rights from the UDRP/URS than exists in the real courts. In other words, Recommendation #5 ensures that both the IGO and the domain name registrant have the outcome determined by the courts, as was expressly desired in the development of the UDRP (which the URS is modeled on).
Everything put forward by the IGOs, in trying to discredit the PDP's final report, is an attempt for IGOs to create a process that would give them better outcomes and better rights than exist in real national courts and under national laws. They want an uneven playing field, one that advantages themselves to the detriment of others. Those attempts should be vehemently opposed (which the Consensus accomplished), as otherwise it would mean ICANN would be creating its own "new law", rather than creating policies that are consistent with ***existing*** laws of nations.
In conclusion, GNSO Council should adopt all the recommendations in the final report.
If it requires a better explanation for the recommendations, that too can certainly be done (that's why I filed the 2nd Section 3.7 appeal!). But, that better explanation should not be done by those who've actively tried to undermine the work.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
participants (3)
-
Drazek, Keith -
George Kirikos -
Paul Keating