Dear All, Please find the attendance and MP3 recording for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 21 July 2016 at 16:00 UTC at: http://audio.icann.org/gnso/gnso-igo-ingo-crp-access-21jul16-en.mp3 On page: http://gnso.icann.org/en/group-activities/calendar#jul The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar<http://gnso.icann.org/en/group-activities/calendar#nov> Attendees: David Maher - PIR George Kirikos - Individual Petter Rindforth - IPC Phil Corwin - BC Jay Chapman - Individual Paul Tattersfiled - Individual Mason Cole - RySG Paul Keating - NCUC Gary Campbell - GAC Lori Schulman - IPC Kathy Kleiman - NCUC Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Terri Agnew ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-ppsai-pdp-wg/ Wiki page: https://community.icann.org/x/9iCfAg Thank you. Kind regards, Terri Agnew ------------------------------- Adobe Connect chat transcript for Thursday, 21 July 2016 Terri Agnew:Dear all, welcome to the IGO-INGO Curative Rights Protection PDP WG Meeting on the Thursday, 21 July 2016 Terri Agnew:agenda wiki page: https://community.icann.org/x/OwebAw George Kirikos:Hello. Jay Chapman:Hey George George Kirikos:Hi Jay. How are you? Jay Chapman:Great - you? George Kirikos:I'm pretty good, thanks. Paul Tattersfield:Hi George Kirikos:Welcome Paul. Paul Tattersfield:Hi George, do you follow the football (soccer) we didn't do much better than you :( George Kirikos:Which match? (I sometimes follow the big events) Paul Tattersfield:England played quite badly, Wales did better in the European cup George Kirikos:Indeed. There were lots of celebtrations in Portuguese neighbourhoods of Toronto. Philip Corwin:dialing in now George Kirikos:Just like there when when Greece won it all in 2004. Paul Tattersfield:I bet :0 Paul Tattersfield::) George Kirikos:*were when George Kirikos:This is like a game of Survivor....and then there were 8 participants left. :-) George Kirikos:Actually 7 left, since Berry is staff too. Mary Wong:Slides are unsync'ed - but there are only 4 slides anyway :) Mary Wong:These basically summarize the Swaine memo options, so please refer to the memo for the full details. Paul Tattersfield:I have no slides showing today is there a quick fix? Mary Wong:@Paul, you may have to relaunch AC or your browser Terri Agnew:@Paul, I am sending you an emial, you may need to update your plug in's for adobe connect Paul Tattersfield:thanks Terri & Mary Mary Wong:In case anyone wishes to listen to the recording of the Board-GAC call (which goes over the whole Communique, so while there are many issues concerning GNSO/gTLD policy, only part of it dealt with the IGO protections issue): https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee?prev... Terri Agnew:Welcome Paul Keating Paul Keating:I am sorry for being late. Paul Keating:But if it is immune then it has the domain. What about invalidating the transfer upon immunity George Kirikos:Instead of showing hands, why not type in the chat which option we prefer? George Kirikos:i.e. instead of 4 polls, just read the chat Paul Keating:IF there is a change, I propose that the UDRP decision becomes null and void if the IGO seeks and is granted immunity in a subsequent legal action in a "mutual jurisdiction" George Kirikos:George Kirikos --- status quo (we can't create new law) Paul Tattersfield:@ Paul why? Paul Keating:because otherwise there is no legal recourse to a decision by a panel and often the panels are wrong. just look at the post UDRP statistics for reversal. George Kirikos:Right, Paul. Court action would be brought when there's a miscarriage of justice in the UDRP. George Kirikos:That's exactly when you NEED and WANT the protections afforded by national law. George Kirikos:We've seen all the dangers before of forum shopping. This is just another case of IGOs wanting to do some forum shopping, to gain an advantage that doesn't exist in real law. Terri Agnew:Welcome Gary Campbell Mary Wong:@Phil, staff agrees that the WG should discuss all the options identified before making a conclusion on whether to amend, not amend etc. George Kirikos:I agree no changes required -- just education. Mary Wong:Are staff allowed to vote? :) George Kirikos:(i.e. education on how to do assignment, etc. George Kirikos:(I don't think we need to modify in order to clarify -- we already have precedents established via UDRP decisions) George Kirikos:Mute? George Kirikos:*6 to unmute/remute Paul Keating:I vote for tweeking. my comments are above Paul Keating:cant speak. ple see chat Terri Agnew:@Paul Keating, your mic is not active. Please let me know if a dial out is needed Paul Keating:+34639371448 Terri Agnew:calling, one moment Terri Agnew:Lori Schulman has joined on the telephone George Kirikos:I think those clarifications need not be done via a Tweak --- they can be done via a "WIPO views on various questions" style document. George Kirikos:Right, not the words "style document". George Kirikos:*note the words Petter Rindforth:Agree, we need to offer somepractical solutions, without creating new policy Terri Agnew:@Paul K, I sent you a private AC chat Paul Keating:am on George Kirikos:While we wait for Paul, I wnated to note that I sent a couple of emails to the list. (1) PDDRP has the same issue of waiver of immunity (2) the World Bank comments about their Cease and Desist letters (implicit legal threats), and the "magnitude" of their problem (50 or 60 problem domains, most already handled successfully via C&D) George Kirikos:Those facts strongly weigh in favour of maintenance of the status quo. Jay Chapman:Subject to what a "tweak" consists of, I might agree with Petter and Phil as to providing guidance. My initial indication is strictly regarding whether any policy "change" was appropriate Mary Wong:@Jay, that's always possible (some sort of clarifying framework or policy guidance) - however, that's also why I raised the TM issue - as written currently, the UDRP and URS are limited to TM rights. Terri Agnew:Welcome Kathy Kleiman Mary Wong:It's not clear that having certain rights under Article 6ter = TM rights in the same way, or that even just limiting Article 6ter to standing to file only would mean that the other two grounds (no legitimate rights and bad faith) would apply wholesale. Mary Wong:In other words, this is perhaps something the WG needs to discuss more fully, in addition to the immunity issue. Jay Chapman:Yes, Mary, and we have seen sufficient evidence that, in spite of such seeming abiguity, IGOs have utilized the UDRP as it is. George Kirikos:Immunity is a DEFENSE to an action. George Kirikos:It wouldn't prejudice their rights to BRING an action. George Kirikos:It would simply be hypocritical, but wouldn't prejudice them. George Kirikos:Right, Paul. They didn't respond to attempts to circumscribe the waiver. Mary Wong:Isn't Mutual Jurisdiction limited to either that of the Registrar or the registrant/respondent? George Kirikos:Right, Paul. Court of competent jurisdiction would be accepted by most registrars. George Kirikos:I don't think it requires a change, given common law rights are recognized too. Mary Wong:@Phil, yes that's the nub. Art 6ter doesn't actually confer TM rights, so equating it wholesale with the first ground of the UDRP/URS (broader than just saying 6ter gives an IGO the procedural standingto sue) could be problematic. Petter Rindforth:I think we can do it clear by adding 6ter to the guidance, or supplemental rules, without the need to change the policy as such Mary Wong:i.e. equating Art 6ter with nat'l TM rights COULD run the risk of creating new legal rights where none currently exist (e.g. b/c the IGO hasn't followed up and actually filed and obtained a TM). Jay Chapman:good points, George George Kirikos:Yes, our report should definitely explain everything carefully, point out standing exists, assignment options, etc. Petter Rindforth:But you don't need a traditional registered trademark to use UDRP, even non-registered, well-known "trademarks" are accepted (one example: the nic-name of a famous artist) George Kirikos:+1 Petter Paul Tattersfield:exactly Petter Jay Chapman:agree, Petter George Kirikos:Common law rights are routinely given standing. Mary Wong:@Petter, yes - but that's still not what Art 6ter confers. George Kirikos:Pragmatically, cybersquatting has also been in decline. George Kirikos:The "fears" when this PDP was created haven't really come to fruition. George Kirikos:(primarily in decline because Pay-Per-Click parking is less profitable) George Kirikos:That's EXACTLY what the IGOs asked for --- that would deprive the registrants of their legal rights. Mary Wong:@George, all - might it be worth discussing whether/why/how arbitral appeal is not the same (in terms of, say, fairness) as filing in a national court? Paul Keating:@Lori, two problems (1) the small universe of d omains are extremely valuable domains; (2) the arbitration introduces yet another form of quasi judicial process subject to whatever "law" the arbitrators believe applies. Petter Rindforth:@Mary - I don't think we are going too far if we accept Article 6ter names as similar to at least non-registered trademarks George Kirikos:Still, you would need to leave the ability of folks to have the protection of their national courts. Mary Wong:@Petter, I don't know for sure - but my understanding is that the "rights" an IGO has under Article 6ter are not substantive legal rights.. Common law or non-registered TMs are still substantive legal rights confierred by particular jurisdictions. Mary Wong:@George, can't the arbitral panel be obliged to apply the applicable national law? George Kirikos:No, Mary. George Kirikos:I'd prefer real judges from my own jurisdiction, where one could appeal to the Supreme Court if necessary. Mary Wong:That way, the IGO is not dragged into court and doesn't risk its immunity, but the arbitral appeal still gets decided by the applicable national law. At least, that's something we can consider recommending? Lori Schulman:Thank you Phil. Petter Rindforth:The countries of the Union undertake to prohibit the unauthorized use in trade of the State armorial bearings of the other countries of the Union, when the use is of such a nature as to be misleading as to the origin of the goods. (WIPOs note on Article 6ter) Lori Schulman:The UDRP is meant to be a streamlined and results not contrary to law. I feel like we are forgetting context here. George Kirikos:Lori: they routinely get the wrong decision, though! That's why we need national courts, to ensure they get the correct result. George Kirikos:See: http://www.wipo.int/amc/en/domains/challenged/ for a set of cases. Jay Chapman:Agree, Paul. George Kirikos:And WIPO stopped updating that page. I told them of other cases, that they refused to post. Lori Schulman:National courts don't necessarily get it right either. George Kirikos:But, national courts have appeals mechanisms, etc. George Kirikos:The due process protection is much stronger in national courts. George Kirikos:Arbitration is routinely used to trample the rights of the 'weak'. Lori Schulman:Can Terri send me the straw poll choices? Paul Keating:to be clear I VOTE WITH PETTER. TWEEK. George Kirikos:(i.e. via forum shopping) Lori Schulman:In fact, arbitration can be as expensive and involved as litigation. George Kirikos:Google "criticisms of arbitration" it's been studied to death. Paul Keating:Can we start with an ouitline of the report? Lori Schulman:Sounds like a good approach. Thank you for listening to "the devil." :) Paul Keating:all points must be included and concensus is the outbcome/xoncludion Jay Chapman:Thanks, everyone. Appreciate the discussion Mary Wong:Thanks all! Paul Tattersfield:thanks, bye Paul Keating:thank you all. Goodbye. George Kirikos:Have a great day, everyone. Bye. Lori Schulman:Well aware of arb v lit issues. Lori Schulman:bye