FOR REVIEW/DISCUSSION: Updated Sections 4 and 6 of the draft Initial Report

Dec. 7, 2016

      Dear all,

Please find attached, in redlined format, updated versions of both Section 4 (Deliberations) and Section 6 (Recommendations) of our Working Group’s draft Initial Report. These updates are the suggested changes, edits and comments made by George, Phil and Jay. Please be so kind as to review the updates for discussion on our call this Thursday, when we will aim to finalize the text for these two important sections.

Following the Thursday discussion, staff will incorporate all the agreed updates into a full draft Initial Report, which we hope to circulate to everyone for your review by early next week. This will allow us to have a final call on 22 December, following which the aim will be to publish the Initial Report for public comment in early January.

We will attempt to address any remaining formatting and typographical errors when we compile the full draft Initial Report for circulation.

Thanks and cheers
Mary

Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong@icann.org
Telephone: +1-603-5744889

From: <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Jay Chapman <jay@digimedia.com>
Date: Wednesday, December 7, 2016 at 04:44
To: Phil Corwin <psc@vlaw-dc.com>
Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW draft Deliberations section of WG Initial Report

Attached are my revisions for sections 4 & 6...

Sincerely,
Jay

This e-mail & any attachment(s) is(/are) confidential & only for the intended recipient(s).  If you are not an intended recipient, please immediately notify me, delete this e-mail & all attachment(s).

On Mon, Dec 5, 2016 at 6:59 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
Attached are my (mostly) stylistic and grammatical revisions of Section 6.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/Cell

Twitter: @VlawDC

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

-----Original Message-----
From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>] On Behalf Of Phil Corwin
Sent: Monday, December 05, 2016 7:04 PM
To: George Kirikos; gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW draft Deliberations section of WG Initial Report

Thanks George.

Other WG members who wish to submit comments or proposed edits should do so within the next 24 hours.

Best to all, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/Cell

Twitter: @VlawDC

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

-----Original Message-----
From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org> [mailto:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>] On Behalf Of George Kirikos
Sent: Monday, December 05, 2016 7:01 PM
To: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW draft Deliberations section of WG Initial Report

Hi folks,

My comments/thoughts on the draft section 4 and section 6 are below:

SECTION 4 COMMENTS

1. page 3 (last paragraph) "…..to prohibit third party use of those identifiers as trademarks…." -- Of course, it's not a total or absolute prohibition, so the language of that paragraph should be altered slightly (i.e. perhaps insert the word "confusing" after "prohibit" for simplicity).

2. page 4: bottom; we might want to note that we also had a group conference call with Professor Swaine after his preliminary report

3. page 5, first paragraph, first sentence: perhaps change the word "opinion" to "research and analysis" (otherwise it suggests that the conclusions are subject to mere whim); or perhaps add "expert" before "opinion" to add more gravitas to the statement

4. page 6, first line "Issue Report preparatory" -- should that be "Issues" (plural), and I'm not sure about the grammar of "preparatory"
in that sentence…it's awkward. Perhaps change "preparatory" to "prior"??

5. page 6, 2nd paragraph, middle, "…for [the GNSO…" opening square bracket has no matching closing square bracket…??

6. page 9: in the table, middle column (or 3rd column), we should note that the Article 6ter registration SUPPLEMENTS existing ability IGOs to have standing (e.g. via common law or registered marks).

7. page 10: middle column, top row (continuation from prior page) -- the part "but an arbitration option can be created…" -- that's just
*one* of the options (probably the minority view at this point); the other option, probably the majority view, was to vitiate the UDRP/URS decision if immunity was attained during a court appeal). So, perhaps the section in the brackets should be removed, or altered.

8. page 10: second column, bottom row, middle column; like my point #6 above, the 6ter registration *SUPPLEMENTS* existing ability to have standing by IGOs.

9. page 9 & page 10: (column 1): the IGO proposal is listed as referencing only "IGO acronymn" -- I assume that should be "IGO *name* or acronym"??

10. page 11, 2nd row, middle column: "or have trademarked same" -- that's imprecise? I think we mean "or who have registered or unregistered common law trademarks"

SECTION 6 COMMENTS

A. page 1, 2nd paragraph of "General" section -- the first sentence is a bit misleading, since it simply says that "the answers to these questions are no" -- If we look at what the questions were, that statement is misleading. The first question had a faulty premise that IGOs and INGOs *don't* already have access to the UDRP and URS. It's clear that as a working group that we've provided evidence that IGOs and INGOs *already* do have access to the UDRP and URS. So, the real PDP was about possible expansion of that access and/or "adjusting the playing field" in favor of one side or the other.

B. page 3: some formatting issues in bullet point 3 (e.g. extra 'dot'
before "Furthermore" and after "Charter"

C. page 3: middle paragraph, last sentence --- "The WGfurther" -- should add a space after "WG" to make it "The WG further"

D. page 3, bullet point 1 (near bottom): first sentence, perhaps make it plural for "Final Issues Report"?? (i.e. Issue vs Issues??)

E. page 4, last paragraph of Recommendation #1: it talks about revisiting our work "if concrete proposals emerge* --- well, we know that those concrete proposals were made by the IGOs at a late stage; so, perhaps we need to modify the language of that paragraph a bit?
(i.e. we received the concrete proposals, and analyzed them, etc., i.e. in Section 4; although, I still believe that the table in Section
4 comparing the recommendations should perhaps be moved to *after* section 6, to make sense chronologically; i.e. we analyzed/contrasted the IGOs Small Group proposal *after* our own recommendations).

F. page 4, Recommendation 2, last sentence -- really it's for the benefit of panelists, registrants, *and* potential IGO complainants.

G. page 5, 2nd last paragraph, last sentence "…in the absence of their possessing trademark or common law rights…." I think the word "registered" belongs before "trademark" (i.e. the common law rights are *unregistered* *trademark* rights; i.e. BOTH are trademark rights, one set registered, the other set are common law).

H. page 9, further discussion of option 2: for the 3rd bullet point (crossing into the following page), perhaps it can be expanded, to highlight the fact that we know that UDRP decisions have been successfully overturned in the courts on numerous occasions, even when there were unanimous 3-panelist UDRP decisions. Furthermore, allowing mandatory and binding arbitration without recourse to the court creates the circumstances for a permanent DIVERGENCE of jurisprudence between the arbitration bodies and the national laws or courts. i.e.
the existence of the appeal mechanism to national courts is of critical importance as a check and balance on the entire UDRP/URS system, because it ensures that the UDRP/URS cannot perpetually expand to give rights that are greater than those that exist in the national courts (which would then create forum shopping, where complainants would use the UDRP/URS to obtain relief that they could never achieve in the courts). Without these checks and balances, the power of "rogue" panelists/providers and the incentives for forum shopping grow considerably, undermining the purpose and integrity of the entire system.

I. page 14, last paragraph of Recommendation #4 (i.e. directly above Recommendation #5); as discussed in our last conference call, the paragraph needs to be softened somewhat, i.e. the "IGOs will have to submit to" line is not accurate, given that we've identified workarounds for the IGOs regarding assignee/licensee bringing the UDRP/URS, in order to shield the IGO.

Sincerely,

George Kirikos
416-588-0269<tel:416-588-0269>
http://www.leap.com/[leap.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=gI1SJaY4oL7nRkdwt0B3TjXIZpXw2ahjh1Wskytc8A0&s=CAG_fs6OOuoNiGuFp4K5ozA3a4KJzBW1L_Mk-nsaCxc&e=>

On Thu, Dec 1, 2016 at 2:59 PM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote:
...
Thank you for these documents, Mary.
To reprise some decisions made on today’s WG call:
·         On our next call of December 8th we are aiming to complete and
approve the revised draft of Section 6 and to perhaps do the same, or
at least get very close, in regard to the new draft of Section 4.
Therefore, all WG members are asked to review those attachments and
forward any comments and proposed revisions to the WG email list no
later than Tuesday,
12/6 in order to give staff sufficient time to prepare new versions
for the
12/8 call.
·         On the 12/15 call we will wrap up work on Section 4 (if not
already done) and review other “boilerplate” report sections that
shall be forthcoming from staff over the next two weeks.
·         Depending on the state of our work and holiday considerations, we
will meet one final time this year on either 12/22 or 12/29. The aim
for that meeting is to approve the final draft of the Preliminary
Report and publishing it for public comment.
·         Presuming that the draft is published for comment in early
January, the 40 day comment period will end in mid-February. If a
significant number of public comments are received prior to the end of
the comment period we may hold an interim WG meeting to review and
discuss those comments. Following the close of the comment period we
will hold several meetings to consider them and discuss any proposed
adjustments to the document. While recognizing that it may not be
feasible, we will aim to publish a Final report just prior to the
Helsinki meeting. If that is not possible then we anticipate
publication of the Final Report in the late March to mid-April timespan.
Let me know if you have any comments or questions. Please take some
time over the next few days to carefully review Sections 4 and 6 – our
wok is almost done and we aim to publish the highest quality document
possible on this complex subject.
Thanks and best regards,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>
[mailto:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>] On Behalf Of Mary Wong
Sent: Tuesday, November 29, 2016 1:12 PM
To: gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>
Subject: [Gnso-igo-ingo-crp] Agenda for WG meeting this week and NEW
draft Deliberations section of WG Initial Report
Dear all,
The proposed agenda for our Working Group meeting this Thursday is as
follows:
1.       Roll call and updates to Statements of Interest
2.       Review of discussions at ICANN57 – GAC Communique and WG open
session
3.       Confirm WG comments in draft Initial Report concerning its review
of the IGO Small Group Proposal
4.       Confirm intended date of publication of Initial Report and other
milestones leading to the Final Report
5.       Any other business
For #2, here is the link to the GAC Communique:
https://gacweb.icann.org/download/attachments/27132037/GAC%20ICANN%205[gacweb.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gacweb.icann.org_download_attachments_27132037_GAC-2520ICANN-25205&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=gI1SJaY4oL7nRkdwt0B3TjXIZpXw2ahjh1Wskytc8A0&s=6Z4uiH1MDfyAI7wDyQ2-XUvX_FFJyWvE4xOirIr7Dso&e=>
7%20Communique.pdf?version=6&modificationDate=1478668059355&api=v2,
and to the transcript of the Working Group session at ICANN57:
http://schd.ws/hosted_files/icann572016/c3/Transcript%20IGO-INGO%20CRP%20Hyderabad%2007%20Nov%202016.pdf[schd.ws]<https://urldefense.proofpoint.com/v2/url?u=http-3A__schd.ws_hosted-5Ffiles_icann572016_c3_Transcript-2520IGO-2DINGO-2520CRP-2520Hyderabad-252007-2520Nov-25202016.pdf&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=gI1SJaY4oL7nRkdwt0B3TjXIZpXw2ahjh1Wskytc8A0&s=Jew5kZqOMGoft9xw-VwsW9TK_-Aejqp20E0W8LtCEiU&e=>.
We note that a link to the slides that were used at that WG session
had been circulated previously (see below).
In addition, for #2, WG members may wish to consider the question that
was raised by the representative of the United States Patent and
Trademark Office (USPTO) who attended the WG open session: “whether
[standing kicks in at the time that a notification is submitted to
WIPO or whether it kicks in once it's disseminated to all of the Paris
Convention member countries and whether they decide whether or not to
reject or not reject that notification.”
For #3, please find attached an initial draft of what will be Section
4 (Deliberations of the PDP Working Group) of our Initial Report
(where Section 6 – which we have been discussing – contains our
Preliminary Recommendations). As noted previously, Section 4
complements Section 6 by providing both the process background and
related narrative to the actual text of the preliminary recommendations.
For purposes of the call this week, staff suggests a focus on Section
4.4 (where the process background and the WG’s conclusions on the
Small Group Proposal are described and tabulated).
We are also attaching a clean copy of the latest version of Section 6,
updated following the last WG call before ICANN57. Please note that in
the interests of getting the draft Deliberations document out to
everyone as soon as we could, staff has not yet done a full sweep
through the Section 6 document to spot overlaps and gaps.
Thanks and cheers
Mary
From: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>
Date: Tuesday, November 8, 2016 at 12:23
To: "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>>
Subject: Slides from the Working Group's open community discussion at
ICANN57
Dear all,
The slides from our Working Group’s open session yesterday at ICANN57,
where our likely initial recommendations were presented to the
community, are available here:
http://schd.ws/hosted_files/icann572016/35/Updated%20IGO-INGO%20CRP%20WG%20Slides%20-%20ICANN57.pdf[schd.ws]<https://urldefense.proofpoint.com/v2/url?u=http-3A__schd.ws_hosted-5Ffiles_icann572016_35_Updated-2520IGO-2DINGO-2520CRP-2520WG-2520Slides-2520-2D-2520ICANN57.pdf&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=gI1SJaY4oL7nRkdwt0B3TjXIZpXw2ahjh1Wskytc8A0&s=TH3cMSVbVsnEa7wQW4rY8ix6HcyA5IgaRn_BzarYImU&e=>.
Once the transcript and recording are published on the ICANN57 meeting
website, we will provide a link to them and the slides from our
Working Group wiki page.
Thanks and cheers
Mary
Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong@icann.org<mailto:mary.wong@icann.org>
Telephone: +1-603-5744889<tel:%2B1-603-5744889>
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Mary Wong

George Kirikos

Phil Corwin

George Kirikos

George Kirikos

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