Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
All, There is an error in my email below. I wrote NGO when obviously I meant to reference IGOs. Please accept my apologies. Below is a corrected version that I would like to be included in the record in replacement of the original. Unfortunately I have been working on several large projects with clients in N. Amer. that have me working the phone most days from 5pm onwards. I have another call tonight so I will not be able to make it. I remain in favor of the following principals A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the IGO) is waiving any objection to jurisdiction of the mutual jurisdiction. B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity. C. There has been no evidence that IGOs have refrained from filing a UDRP because of their concerns over sovereign immunity. D. IGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor. * Assertions of phishing are merely that assertions. Assertions are not evidence. E. IGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc. * Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the IGO. F. That if the IGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated. I have previously explained my additional rationale for this position, which is summarized here: 1. The UDRP was created as an streamlined administrative action in which: a. Notice and service of process was simplified no confirmation of notice is required. b. Filings are limited by page/word length. c. Evidence is severely limited in both form and quantity d. Assertions are often treated as evidence. e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions. 2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process. 3. IGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add. 4. There is no concrete way to establish what constitutes an IGO. IGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate. 5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy). 6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition. 7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both. 8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name. UDRP Appeals Process. I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants. As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation. I strongly disfavor any appeals process that would be unique to IGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Paul Keating <paul@law.es> Date: Thursday, November 16, 2017 at 2:30 PM To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: George Kirikos <george@loffs.com> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Mary and fellow WG members,
Unfortunately I have been working on several large projects with clients in North America that have me working the phone most daystar 8am conference calls (which for me being in Barcelona - begin at 5pm onwards. I have another client call tonight so I will not be able to make the call today.
Please make the following known to the group and retain it in the WG records
I remain in favor of the following principals
A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the NGO) is waiving any objection to jurisdiction of the mutual jurisdiction.
B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity.
C. There has been no evidence that NGOs have refrained from filing a UDRP because of their concerns over sovereign immunity.
D. NGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor.
* Assertions of phishing are merely that assertions. Assertions are not evidence.
E. NGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc.
* Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the NGO.
F. That if the NGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated.
I have previously explained my additional rationale for this position, which is summarized here:
1. The UDRP was created as an streamlined administrative action in which:
a. Notice and service of process was simplified no confirmation of notice is required.
b. Filings are limited by page/word length.
c. Evidence is severely limited in both form and quantity
d. Assertions are often treated as evidence.
e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions.
2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process.
3. NGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add.
4. There is no concrete way to establish what constitutes an NGO. NGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate.
5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy).
6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition.
7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both.
8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name.
UDRP Appeals Process.
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants.
As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation.
I strongly disfavor any appeals process that would be unique to NGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
Thanks for these thoughts, Paul Philip S. Corwin Founding Principal Virtualaw LLC 1155 F Street, NW Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VLawDC "Luck is the residue of design" -- Branch Rickey ________________________________ From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Keating <Paul@law.es> Sent: Thursday, November 16, 2017 9:48 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org Cc: George Kirikos Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July All, There is an error in my email below. I wrote NGO when obviously I meant to reference IGOs. Please accept my apologies. Below is a corrected version that I would like to be included in the record in replacement of the original. Unfortunately I have been working on several large projects with clients in N. Amer. that have me working the phone most days from 5pm onwards. I have another call tonight so I will not be able to make it. I remain in favor of the following principals A. That by filing a UDRP complaint and agreeing to the “Mutual Jurisdiction” the complainant (including the IGO) is waiving any objection to jurisdiction of the mutual jurisdiction. B. That by relying upon “trademark” rights the complainant is by definition admitting to a commercial activity. C. There has been no evidence that IGOs have refrained from filing a UDRP because of their concerns over sovereign immunity. D. IGOs have in the past filed UDRPs – evidence that the Mutual Jurisdiction provisions are not a limiting factor. * Assertions of phishing are merely that – assertions. Assertions are not evidence. E. IGOs have alternative means to press their claims in a UDRP (or other legal) forum – e.g. by assignment, etc. * Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the IGO. F. That if the IGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated. I have previously explained my additional rationale for this position, which is summarized here: 1. The UDRP was created as an streamlined administrative action in which: a. Notice and service of process was simplified – no confirmation of notice is required. b. Filings are limited by page/word length. c. Evidence is severely limited in both form and quantity d. Assertions are often treated as evidence. e. There is no “precedent” value and panelists are neither required nor inclined to follow relevant judicial decisions. 2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process. 3. IGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established – with the blessing of WIPO I might add. 4. There is no concrete way to establish what constitutes an IGO. IGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate. 5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy). 6. Trademark rights have been proscribed to a “standing” requirement that presents no meaningful condition. 7. The requirement that the trademark be “identical or confusingly similar” to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name “the.com” is confusingly similar to a trademark for “Theatre” because the letter sequence “the” appears in both. 8. Panelists rarely apply trademark analysis to the registrant’s use of the domain name. UDRP Appeals Process. I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process – organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants. As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists – economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation. I strongly disfavor any appeals process that would be unique to IGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification. Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> [http://d1se4t4tzjp7kt.cloudfront.net/2ee20d93b6/templates/limited/images/logo.png]<http://law.es/> Law.es<http://law.es/> law.es Law.es is a modern firm with the single goal of providing timely and targeted expert legal advice within the demanding business environment of the client. Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Paul Keating <paul@law.es<mailto:paul@law.es>> Date: Thursday, November 16, 2017 at 2:30 PM To: Mary Wong <mary.wong@icann.org<mailto:mary.wong@icann.org>>, "gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp@icann.org<mailto:gnso-igo-ingo-crp@icann.org>> Cc: George Kirikos <george@loffs.com<mailto:george@loffs.com>> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July Mary and fellow WG members, Unfortunately I have been working on several large projects with clients in North America that have me working the phone most daystar 8am conference calls (which for me – being in Barcelona - begin at 5pm onwards. I have another client call tonight so I will not be able to make the call today. Please make the following known to the group and retain it in the WG records I remain in favor of the following principals A. That by filing a UDRP complaint and agreeing to the “Mutual Jurisdiction” the complainant (including the NGO) is waiving any objection to jurisdiction of the mutual jurisdiction. B. That by relying upon “trademark” rights the complainant is by definition admitting to a commercial activity. C. There has been no evidence that NGOs have refrained from filing a UDRP because of their concerns over sovereign immunity. D. NGOs have in the past filed UDRPs – evidence that the Mutual Jurisdiction provisions are not a limiting factor. * Assertions of phishing are merely that – assertions. Assertions are not evidence. E. NGOs have alternative means to press their claims in a UDRP (or other legal) forum – e.g. by assignment, etc. * Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the NGO. F. That if the NGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated. I have previously explained my additional rationale for this position, which is summarized here: 1. The UDRP was created as an streamlined administrative action in which: a. Notice and service of process was simplified – no confirmation of notice is required. b. Filings are limited by page/word length. c. Evidence is severely limited in both form and quantity d. Assertions are often treated as evidence. e. There is no “precedent” value and panelists are neither required nor inclined to follow relevant judicial decisions. 2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process. 3. NGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established – with the blessing of WIPO I might add. 4. There is no concrete way to establish what constitutes an NGO. NGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate. 5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy). 6. Trademark rights have been proscribed to a “standing” requirement that presents no meaningful condition. 7. The requirement that the trademark be “identical or confusingly similar” to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name “the.com” is confusingly similar to a trademark for “Theatre” because the letter sequence “the” appears in both. 8. Panelists rarely apply trademark analysis to the registrant’s use of the domain name. UDRP Appeals Process. I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process – organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants. As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists – economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation. I strongly disfavor any appeals process that would be unique to NGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
Phil, Thanks for the email and sorry I will not be on the call. I have a client call that conflicts. I also understand you are opposed to the views expressed below but mainly from a political viewpoint - that being that the ICANN board and GAC have seemingly rejected the initial conclusions of the WG which was to make no change. I believe your point is that we should come up with a political compromise that could be accepted. I respectfully disagree. We have done the work and we have obtained both evidence and legal opinions that support that work. If ICANN does not wish to accept the conclusions then that is not in-and-of-iteelf a reason to change what we have originally concluded. ICANN can reject the result and appoint a new WG to try to reach a different conclusion. They could act independently and outside of the system. However, in any case: The current situation remains in place, albeit absent the vitiating of the UDRP decision. The new WG would have to contend with our prior findings which would be difficult to ignore ICANN in acting alone would have to deal with the political issues that come with such actions. None of these should be our concern. We are tasked to examine the question and reach a consensus based upon the evidence and the legal opinions we have obtained. I do not believe that we have concluded that there is in fact a problem (in fact all evidence seems to the contrary IGOs have used the UDRP system as it is and there is no evidence that any have refrained from taking curative steps because of the sovereign immunity issue). Given that landscape it is improper IMHO to attempt to forge a political solution that creates substantial burdens for domain name registrants, upsets their long standing contractual rights and expectations, and creates yet another curative rights mechanism. Respectfully, Paul Keating From: Phil Corwin <psc@vlaw-dc.com> Date: Thursday, November 16, 2017 at 5:36 PM To: Paul Keating <paul@law.es>, Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: George Kirikos <george@loffs.com>, Philip Corwin <pcorwin@verisign.com> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Thanks for these thoughts, Paul
Philip S. Corwin
Founding Principal
Virtualaw LLC
1155 F Street, NW
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VLawDC
"Luck is the residue of design" -- Branch Rickey
From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Keating <Paul@law.es> Sent: Thursday, November 16, 2017 9:48 AM To: Mary Wong; gnso-igo-ingo-crp@icann.org Cc: George Kirikos Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
All,
There is an error in my email below. I wrote NGO when obviously I meant to reference IGOs. Please accept my apologies. Below is a corrected version that I would like to be included in the record in replacement of the original.
Unfortunately I have been working on several large projects with clients in N. Amer. that have me working the phone most days from 5pm onwards. I have another call tonight so I will not be able to make it.
I remain in favor of the following principals
A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the IGO) is waiving any objection to jurisdiction of the mutual jurisdiction.
B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity.
C. There has been no evidence that IGOs have refrained from filing a UDRP because of their concerns over sovereign immunity.
D. IGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor.
* Assertions of phishing are merely that assertions. Assertions are not evidence.
E. IGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc.
* Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the IGO.
F. That if the IGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated.
I have previously explained my additional rationale for this position, which is summarized here:
1. The UDRP was created as an streamlined administrative action in which:
a. Notice and service of process was simplified no confirmation of notice is required.
b. Filings are limited by page/word length.
c. Evidence is severely limited in both form and quantity
d. Assertions are often treated as evidence.
e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions.
2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process.
3. IGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add.
4. There is no concrete way to establish what constitutes an IGO. IGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate.
5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy).
6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition.
7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both.
8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name.
UDRP Appeals Process.
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants.
As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation.
I strongly disfavor any appeals process that would be unique to IGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
Sincerely,
Paul Raynor Keating, Esq.
Law.es <http://law.es/>
<http://law.es/> Law.es <http://law.es/> law.es Law.es is a modern firm with the single goal of providing timely and targeted expert legal advice within the demanding business environment of the client.
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es
THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS.
Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE
From: Paul Keating <paul@law.es> Date: Thursday, November 16, 2017 at 2:30 PM To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: George Kirikos <george@loffs.com> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Mary and fellow WG members,
Unfortunately I have been working on several large projects with clients in North America that have me working the phone most daystar 8am conference calls (which for me being in Barcelona - begin at 5pm onwards. I have another client call tonight so I will not be able to make the call today.
Please make the following known to the group and retain it in the WG records
I remain in favor of the following principals
A. That by filing a UDRP complaint and agreeing to the ³Mutual Jurisdiction² the complainant (including the NGO) is waiving any objection to jurisdiction of the mutual jurisdiction.
B. That by relying upon ³trademark² rights the complainant is by definition admitting to a commercial activity.
C. There has been no evidence that NGOs have refrained from filing a UDRP because of their concerns over sovereign immunity.
D. NGOs have in the past filed UDRPs evidence that the Mutual Jurisdiction provisions are not a limiting factor.
* Assertions of phishing are merely that assertions. Assertions are not evidence.
E. NGOs have alternative means to press their claims in a UDRP (or other legal) forum e.g. by assignment, etc.
* Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the NGO.
F. That if the NGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated.
I have previously explained my additional rationale for this position, which is summarized here:
1. The UDRP was created as an streamlined administrative action in which:
a. Notice and service of process was simplified no confirmation of notice is required.
b. Filings are limited by page/word length.
c. Evidence is severely limited in both form and quantity
d. Assertions are often treated as evidence.
e. There is no ³precedent² value and panelists are neither required nor inclined to follow relevant judicial decisions.
2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process.
3. NGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established with the blessing of WIPO I might add.
4. There is no concrete way to establish what constitutes an NGO. NGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate.
5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy).
6. Trademark rights have been proscribed to a ³standing² requirement that presents no meaningful condition.
7. The requirement that the trademark be ³identical or confusingly similar² to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name ³the.com² is confusingly similar to a trademark for ³Theatre² because the letter sequence ³the² appears in both.
8. Panelists rarely apply trademark analysis to the registrant¹s use of the domain name.
UDRP Appeals Process.
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants.
As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation.
I strongly disfavor any appeals process that would be unique to NGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
I completely agree with Paul on this. These IGO names issues have been a political football for nearly five years now. The GAC is never going to get the GNSO to say what the GAC wants it to say -- we are not going to agree. The GAC has never proved any legitimate public interest concern to back their position. Accordingly, the IGO names policy was passed by a supermajority of the GNSO (as likely will be this latest policy recommendation) and that has implications in the Bylaws for the Board. The Board needs to make a decision. The GNSO need not be interested in politics, that is the Board and GAC's concern; we are interested in facts and real world policy. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Thu, Nov 16, 2017 at 8:51 AM, Paul Keating <Paul@law.es> wrote:
Phil,
Thanks for the email and sorry I will not be on the call. I have a client call that conflicts.
I also understand you are opposed to the views expressed below but mainly from a political viewpoint - that being that the ICANN board and GAC have seemingly rejected the initial conclusions of the WG which was to make no change. I believe your point is that we should come up with a political compromise that could be accepted.
I respectfully disagree. We have done the work and we have obtained both evidence and legal opinions that support that work. If ICANN does not wish to accept the conclusions then that is not in-and-of-iteelf a reason to change what we have originally concluded. ICANN can reject the result and appoint a new WG to try to reach a different conclusion. They could act independently and outside of the system. However, in any case:
The current situation remains in place, albeit absent the vitiating of the UDRP decision. The new WG would have to contend with our prior findings which would be difficult to ignore ICANN – in acting alone – would have to deal with the political issues that come with such actions.
None of these should be our concern. We are tasked to examine the question and reach a consensus based upon the evidence and the legal opinions we have obtained. I do not believe that we have concluded that there is in fact a problem (in fact all evidence seems to the contrary – IGOs have used the UDRP system as it is and there is no evidence that any have refrained from taking curative steps because of the sovereign immunity issue). Given that landscape it is improper IMHO to attempt to forge a political solution that creates substantial burdens for domain name registrants, upsets their long standing contractual rights and expectations, and creates yet another curative rights mechanism.
Respectfully,
Paul Keating
From: Phil Corwin <psc@vlaw-dc.com> Date: Thursday, November 16, 2017 at 5:36 PM To: Paul Keating <paul@law.es>, Mary Wong <mary.wong@icann.org>, " gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Cc: George Kirikos <george@loffs.com>, Philip Corwin <pcorwin@verisign.com
Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Thanks for these thoughts, Paul
Philip S. Corwin
Founding Principal
Virtualaw LLC
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Washington, DC 20004
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------------------------------ *From:* Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Paul Keating <Paul@law.es> *Sent:* Thursday, November 16, 2017 9:48 AM *To:* Mary Wong; gnso-igo-ingo-crp@icann.org *Cc:* George Kirikos *Subject:* Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
All,
There is an error in my email below. I wrote NGO when obviously I meant to reference IGOs. Please accept my apologies. Below is a corrected version that I would like to be included in the record in replacement of the original.
Unfortunately I have been working on several large projects with clients in N. Amer. that have me working the phone most days from 5pm onwards. I have another call tonight so I will not be able to make it.
I remain in favor of the following principals
A. That by filing a UDRP complaint and agreeing to the “Mutual Jurisdiction” the complainant (including the IGO) is waiving any objection to jurisdiction of the mutual jurisdiction.
B. That by relying upon “trademark” rights the complainant is by definition admitting to a commercial activity.
C. There has been no evidence that IGOs have refrained from filing a UDRP because of their concerns over sovereign immunity.
D. IGOs have in the past filed UDRPs – evidence that the Mutual Jurisdiction provisions are not a limiting factor.
* Assertions of phishing are merely that – assertions. Assertions are not evidence.
E. IGOs have alternative means to press their claims in a UDRP (or other legal) forum – e.g. by assignment, etc.
* Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the IGO.
F. That if the IGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated.
I have previously explained my additional rationale for this position, which is summarized here:
1. The UDRP was created as an streamlined administrative action in which:
a. Notice and service of process was simplified – no confirmation of notice is required.
b. Filings are limited by page/word length.
c. Evidence is severely limited in both form and quantity
d. Assertions are often treated as evidence.
e. There is no “precedent” value and panelists are neither required nor inclined to follow relevant judicial decisions.
2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process.
3. IGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established – with the blessing of WIPO I might add.
4. There is no concrete way to establish what constitutes an IGO. IGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate.
5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy).
6. Trademark rights have been proscribed to a “standing” requirement that presents no meaningful condition.
7. The requirement that the trademark be “identical or confusingly similar” to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name “the.com” is confusingly similar to a trademark for “Theatre” because the letter sequence “the” appears in both.
8. Panelists rarely apply trademark analysis to the registrant’s use of the domain name.
*UDRP Appeals Process. *
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process – organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants.
As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists – economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation.
I strongly disfavor any appeals process that would be unique to IGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
Sincerely,
Paul Raynor Keating, Esq.
Law.es <http://law.es/> <http://law.es/> Law.es <http://law.es/> law.es Law.es is a modern firm with the single goal of providing timely and targeted expert legal advice within the demanding business environment of the client.
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Fax. (US)(415) 358.4450 <(415)%20358-4450>
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email: Paul@law.es
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From: Paul Keating <paul@law.es> Date: Thursday, November 16, 2017 at 2:30 PM To: Mary Wong <mary.wong@icann.org>, "gnso-igo-ingo-crp@icann.org" < gnso-igo-ingo-crp@icann.org> Cc: George Kirikos <george@loffs.com> Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
Mary and fellow WG members,
Unfortunately I have been working on several large projects with clients in North America that have me working the phone most daystar 8am conference calls (which for me – being in Barcelona - begin at 5pm onwards. I have another client call tonight so I will not be able to make the call today.
Please make the following known to the group and retain it in the WG records
I remain in favor of the following principals
A. That by filing a UDRP complaint and agreeing to the “Mutual Jurisdiction” the complainant (including the NGO) is waiving any objection to jurisdiction of the mutual jurisdiction.
B. That by relying upon “trademark” rights the complainant is by definition admitting to a commercial activity.
C. There has been no evidence that NGOs have refrained from filing a UDRP because of their concerns over sovereign immunity.
D. NGOs have in the past filed UDRPs – evidence that the Mutual Jurisdiction provisions are not a limiting factor.
* Assertions of phishing are merely that – assertions. Assertions are not evidence.
E. NGOs have alternative means to press their claims in a UDRP (or other legal) forum – e.g. by assignment, etc.
* Phishing and similar conduct can be appropriately prosecuted by law enforcement on behalf of the NGO.
F. That if the NGO successfully asserts sovereign immunity in a post UDRP proceeding, the underlying UDRP decision should be vitiated.
I have previously explained my additional rationale for this position, which is summarized here:
1. The UDRP was created as an streamlined administrative action in which:
a. Notice and service of process was simplified – no confirmation of notice is required.
b. Filings are limited by page/word length.
c. Evidence is severely limited in both form and quantity
d. Assertions are often treated as evidence.
e. There is no “precedent” value and panelists are neither required nor inclined to follow relevant judicial decisions.
2. Section 4(k) was a material part of the bargain to permit a losing registrant the right to challenge the matter before a real court under real rules guarantying due process.
3. NGOs were certainly around at the time. Their input was heard. The UDRP was nevertheless established – with the blessing of WIPO I might add.
4. There is no concrete way to establish what constitutes an NGO. NGOs come in a variety of shapes, sizes and qualities. Some are expressly not recognized by nation states. This in turn rises substantial issues of proof- which in the context of the limited administrative nature of the UDRP is inappropriate.
5. The UDRP is a contractually created process mandated by ICANN. All registrants must agree to application of the UDRP (or similar ADR) as a condition to registration. The UDRP Policy itself is not based upon recognized jurisprudence and is constantly shifting in meaning and scope as panelists seek to further streamline the process by largely ignoring the express language of the Policy. It also obligates the registrant to abide by an ever-changing landscape of trademarks (e.g. registration and use of a domain name in PPC followed by a later trademark registration would place the registrant at risk of losing the domain name because PPC use is rarely recognized and at least a minority of panelists continue to apply retroactive standards such as those found in MummyGold and other decisions attempting to retroactively apply Paragraph 2 to the Policy).
6. Trademark rights have been proscribed to a “standing” requirement that presents no meaningful condition.
7. The requirement that the trademark be “identical or confusingly similar” to the asserted trademark has been proscribed such that the condition is met whenever the trademark appears (in whole or significant part) in the domain name. Thus, for example, the rule supports finding that the domain name “the.com” is confusingly similar to a trademark for “Theatre” because the letter sequence “the” appears in both.
8. Panelists rarely apply trademark analysis to the registrant’s use of the domain name.
*UDRP Appeals Process.*
I have forwarded a prior email to Mr. Beckman and the WG on the subject of a UDRP appeal process – organized and managed in a manner similar to the DRS process at Nominet. This is not a change of position as I favor an appeals process for all UDRP participants.
As I stated in my communications, such an appeals process is not a replacement of Section 4(k) or the mutual jurisdiction certification. Instead it should be an economical means of correcting poorly reasoned decisions by inexperienced or biased panelists – economical in that it limits those situations in which the parties must spend tens of thousands of dollars in litigation.
I strongly disfavor any appeals process that would be unique to NGOs or that would remove the protections of Section 4(k) or the mutual jurisdictional certification.
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi folks, On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I completely agree with Paul on this. These IGO names issues have been a political football for nearly five years now. The GAC is never going to get the GNSO to say what the GAC wants it to say -- we are not going to agree. The GAC has never proved any legitimate public interest concern to back their position. Accordingly, the IGO names policy was passed by a supermajority of the GNSO (as likely will be this latest policy recommendation) and that has implications in the Bylaws for the Board. The Board needs to make a decision. The GNSO need not be interested in politics, that is the Board and GAC's concern; we are interested in facts and real world policy.
Yet, the backers of Option C within this PDP have *also* been playing politics. It was pretty much established that Option 1 (now Option A) had the backing of this PDP when the preliminary report went out earlier this year, as I pointed out in today's call, based on all the analysis of law and facts. What "new information" or "new facts" or "new analysis" have been presented to get some members of this PDP to shift to the old Option 2 (now Option C)? Absolutely none -- just scaremongering about how the GNSO Council or others might react ---- *that's* politics. There's nothing "principles based" about Option C that has anything to do with facts or law. Politics were being played even *before* we got to this PDP. The prior PDP should have just said "No more", but then they kicked the can down the road (leading to this 3 years of work), which the IGOs themselves have not participated in. I hope that folks regain their bearings before this PDP is over, and really think hard about the fundamental principles that lead to policy decisions (I've been reading Ray Dalio's new book "Principles" lately). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
participants (4)
-
George Kirikos -
Mike Rodenbaugh -
Paul Keating -
Phil Corwin