Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all, Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3 Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Thank you. Kind regards, Terri
Thanks Terri, Julie, Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a "subjective and qualitative review" of URS decisions with respect to the standard of evidence. Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be "no". If on the other hand, there is a significant instance of appeals, that may merit the type of "review" proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible "improvements" going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements). Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Dear all, Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3 Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Thank you. Kind regards, Terri
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole. In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined. Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Thanks Terri, Julie, Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence. Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”. If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements). Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Dear all, Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_uAxyB&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=B6_xLKTzbSMugFS24znCh5-AOPHfaylATml5PH6QU2Q&e=> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3<https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gnso-2Drpm-2Dreview-2D01feb18-2Den.mp3&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=a5MR5HKPZXxEzSYhPVLgBP-z5u9CfwX-FYF4NAYkUmE&e=> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/<https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p6mww2tis6b_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=RJs2bS_ca1WJo0SpJIVmki2x7PKi3Vys_oqa-pAwDgA&e=> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_calendar&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=ur-xpgtinOuwMSg8wnX6YTUr9mQF4tVqWR5Uu867J80&e=> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_gnso-2Drpm-2Dwg_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=d08WTVPvoIs8pbaizleMN-TkGoViJWukVFjCsoQa_as&e=> Main wiki page for the working group: https://community.icann.org/x/wCWAAw<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_wCWAAw&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=WDlCIXZEF11cuAabLb8GpAmIJEA5R1y6gEpqKCi5D1A&e=> Thank you. Kind regards, Terri
Well said, Rebecca. Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption. The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself. Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at: http://www.wipo.int/amc/en/domains/challenged/ I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions. Here are 4 court cases that I brought to WIPO's attention already: 1. Soundstop.com -- http://domainnamewire.com/2016/07/21/mike-mann-overturns-udrp-decision-court... 2. AustinPain.com -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts... 3. SDT.com -- http://domainnamewire.com/2015/07/22/50000-penalty-for-filing-a-frivolous-ud... 4. Moobitalk.com -- http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a5-7233a1... https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-ch-1-arre... http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-0835 Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them). Let's check back at: http://www.wipo.int/amc/en/domains/challenged/ and see if those 4 cases above get added. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP. The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP." Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at: https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/cha... I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions. Here are 4 court cases that I brought to WIPO's attention already: 1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXihZRNsh... -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/07/21/m... 2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8lJn4c5b... -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts... 3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzgcZDLBX... -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/07/22/5... 4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm51Ibqb... -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/detail... https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurisprudences... https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/sea... Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them). Let's check back at: https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/cha... and see if those 4 cases above get added. Sincerely, George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj6kIMBk... On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
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Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/cha...
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXihZRNsh... -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/07/21/m...
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8lJn4c5b... -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscourts...
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzgcZDLBX... -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/07/22/5...
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm51Ibqb... -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/detail... https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurisprudences... https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/sea...
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/cha...
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj6kIMBk...
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided. In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system. As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name. Georges Nahitchevansky -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call
Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com>
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us courts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/ detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4 XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E, 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_ b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc 0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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Georges: Well said. Thank you for a comprehensive and detailed analysis needed to articulate the speciousness of comparing the limited time, evidence and rules of the summary UDRP and URS proceedings against each country’s extensive, multi-phase judicial process using historic judge tempered rules, territory specific laws, discovery to present a robust and authenticated evidentiary record to an experienced, often appointed for life judiciary – and calling decisions in the latter an appeal to critique the UDRP as flawed? More likely the UDRP/URS is abused as the test case for phase 1 to see what the defendant can get away with cheaply, and if it fails just tack on a dec action in an Article III court to see how much more can be leveraged until settlement. No appellate judge would consider critiquing a decision below without the full record and neither should we. Your suggestions for the proper solutions to avoid focus on the wrong targets are equally compelling and should be given due consideration by every member of this forum. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<calendly.com/saustin-2/15min> a 30-minute call<calendly.com/saustin-2/30min> a 60-minute call<calendly.com/saustin-2/60min> [cid:image001.png@01D39F77.F7449D30][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: Nahitchevansky, Georges [mailto:ghn@kilpatricktownsend.com] Sent: Tuesday, February 6, 2018 5:33 PM To: George Kirikos <icann@leap.com>; Scott Austin <SAustin@vlplawgroup.com> Cc: gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided. In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system. As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name. Georges Nahitchevansky -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/<https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,8NhXupKb0dwdyYMNWcjJao-tcm9rqDxKUsTo2Zs_iLtsHzMKFmgPZxUUIuIPrIiEsHA5R0TsBkZxQXwz5jLO8eyRwT2wsOBs33DM52hKt30muIPIa5hT&typo=1> On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com<https://linkprotect.cudasvc.com/url?a=https://pupa.com&c=E,1,0rAB69sBOLWNOTa85JnBYHdAtQIazPf5kLzSkxBdJ9jHq65QYjgKEP2L7dI0XPnELQNPbMsuqqX1PDeY8YxR3PvMGpnCaObr7ppTshZ1gr7BccS6gviSstX2&typo=1>> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us courts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/ detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4 XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E, 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_ b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc 0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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I agree with Georges’ comments and some comments made in the call that qualitative review may not be very constructive. The cases are determined by panelists from various backgrounds, legal system qualifications, and experience, and trying to second guess why decisions came out the way they do would not in my mind lead to any meaningful result. As stated in the call some decisions are better reasoned than others and therefore I do agree that if a review is undertaken the review may at best address the minimum requirements of information to be stated in the decisions by Panelists. Thanks, On 7 Feb 2018, at 7:34 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided. In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system. As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name. Georges Nahitchevansky -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com<http://pupa.com>> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us courts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/ detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4 XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E, 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_ b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc 0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ************************************************************************************ This footnote confirms that this email message has been scanned by PineApp Mail-SeCure for the presence of malicious code, vandals & computer viruses. ************************************************************************************ --ef.-1.0dbefc34dd3a5cedba4e29b8b521d53d.ef-- _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
As a URS Provider, Forum finds itself in a difficult position with respect to many of the decision review options set forth to date. We are concerned that the filing parties reasonably expected that their filings would be confidential. We are also concerned that if we intervened with the examiners on behalf of the WG regarding past decisions, or drew conclusions regarding the examiners’ aptitude to decide a particular case correctly, that we would undermine our role as a neutral administrator in the URS process. Forum will of course continue to cooperate with the WG, but cautions that any information outside of the decision itself should be gathered in a way that does not upset the integrity of the URS system. Kind regards, Renee Fossen Director of Arbitration Forum 6465 Wayzata Blvd., Suite 480 Minneapolis, MN 55405 Phone 952.516.6456 E-mail rfossen@adrforum.com<mailto:rfossen@adrforum.com> www.adrforum.com From: Jonathan_agmon icann [mailto:jonathan.agmon.icann@ip-law.legal] Sent: Tuesday, February 06, 2018 7:12 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 I agree with Georges’ comments and some comments made in the call that qualitative review may not be very constructive. The cases are determined by panelists from various backgrounds, legal system qualifications, and experience, and trying to second guess why decisions came out the way they do would not in my mind lead to any meaningful result. As stated in the call some decisions are better reasoned than others and therefore I do agree that if a review is undertaken the review may at best address the minimum requirements of information to be stated in the decisions by Panelists. Thanks, On 7 Feb 2018, at 7:34 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided. In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system. As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name. Georges Nahitchevansky -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com<http://pupa.com>> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
Please click below to use my booking calendar to schedule: a 15-minute call a 30-minute call a 60-minute call
Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com>
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us courts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/ detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4 XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E, 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_ b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc 0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ************************************************************************************ This footnote confirms that this email message has been scanned by PineApp Mail-SeCure for the presence of malicious code, vandals & computer viruses. ************************************************************************************ --ef.-1.0dbefc34dd3a5cedba4e29b8b521d53d.ef-- _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Renee, Regarding the confidentiality, there is no provision in the Rules that would form the basis for confidentiality of filings. There is obviously nothing to prevent a panelist from quoting anything contained in the filings. And, of course there is nothing that prevents the opposing party from publishing any filings they have received. Thus, although they have typically not been published, it would be unusual for the parties to somehow believe they have some right of confidentiality in documents being submitted.. Nevertheless, I have suggested that disclosure of the underlying filings be gated in terms of access so that they are not needlessly publicized. If you feel there is some legal basis for asserting confidentiality please share it with us. Regarding NAF¹s post WG report interactions with its panelists, that is a matter yet to be determined. WIPO, for example, is very active in promoting continuing education of panelists. This has never been seen as interference or undermining WIPO¹s role as a neutral. And, in any event the result would be an assessment of whether or not, and to what extent, panel decisions reflected the established standards. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of "Fossen, Renee" <rfossen@adrforum.com> Date: Wednesday, February 7, 2018 at 4:53 PM To: Jonathan_agmon icann <jonathan.agmon.icann@ip-law.legal>, Georges Nahitchevansky <ghn@kilpatricktownsend.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
As a URS Provider, Forum finds itself in a difficult position with respect to many of the decision review options set forth to date. We are concerned that the filing parties reasonably expected that their filings would be confidential. We are also concerned that if we intervened with the examiners on behalf of the WG regarding past decisions, or drew conclusions regarding the examiners¹ aptitude to decide a particular case correctly, that we would undermine our role as a neutral administrator in the URS process.
Forum will of course continue to cooperate with the WG, but cautions that any information outside of the decision itself should be gathered in a way that does not upset the integrity of the URS system.
Kind regards,
Renee Fossen Director of Arbitration
Forum 6465 Wayzata Blvd., Suite 480 Minneapolis, MN 55405 Phone 952.516.6456 E-mail rfossen@adrforum.com <mailto:rfossen@adrforum.com> www.adrforum.com
From: Jonathan_agmon icann [mailto:jonathan.agmon.icann@ip-law.legal] Sent: Tuesday, February 06, 2018 7:12 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
I agree with Georges¹ comments and some comments made in the call that qualitative review may not be very constructive.
The cases are determined by panelists from various backgrounds, legal system qualifications, and experience, and trying to second guess why decisions came out the way they do would not in my mind lead to any meaningful result. As stated in the call some decisions are better reasoned than others and therefore I do agree that if a review is undertaken the review may at best address the minimum requirements of information to be stated in the decisions by Panelists.
Thanks,
On 7 Feb 2018, at 7:34 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided.
In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system.
As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name.
Georges Nahitchevansky
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Hi Scott,
I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive
at:
http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html
i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc.
Contrast those links with the mangled links in your email at:
http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html
While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented.
Sincerely,
George Kirikos
416-588-0269
On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com> wrote:
George:
Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com <http://pupa.com> > which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards,
Scott
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-----Original Message-----
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of
George Kirikos
Sent: Tuesday, February 6, 2018 9:02 AM
To: gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for
Review of all Rights Protection Mechanisms (RPMs) PDP Working Group
call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've
**repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g
CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to
that list, without success. Thus, perhaps we have a situation of low
*reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1.
https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi
hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd
QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 --
https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0
7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h
dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn
nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2.
https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l
Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn
lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 --
http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us
courts.cod.147273.23.0.pdf
3.
https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg
cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl
9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 --
https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0
7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG
elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ
s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4.
https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm
51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG
05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 --
https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/
detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4
XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy
r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1
https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru
dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E,
1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff
iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ
2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ
ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai
ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W
ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty
po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos
416-588-0269
https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj
6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh
TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then
I would think that the low overall usage rate of the entire URS
procedure, relative to the number of domain names registered, should
also be an appropriate metric. The same would apply to the very low
sunrise usage. That would support the elimination of the sunrise and
URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were
considered by some here to be very powerful evidence (LOL!) speaks
for itself.
Unlike those 33 survey responses which purported to be statistically
representative of all TM holders worldwide and valid, we can review
the entire universe of URS decisions (thus it's no longer a *sample*
of a larger population, where getting a reliable sample might be
hard; it's the *entire* population being studied).
Sincerely,
George Kirikos
416-588-0269
https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_
b
Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc
0
F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca
<rtushnet@law.harvard.edu> wrote:
>> I'd like to reiterate to the mailing list that "subjective" is often
>> being used in an undefined and I think unjustified way. As was
>> pointed out on the call, there are plenty of qualitative inquiries
>> on which we can expect agreement and which shouldn't be deemed
>> "subjective" by any standard: did the panelist identify the domain
>> name at issue? Did the panelist identify the abusive use?
>> Aggregated, these individual observations provide valuable
>> information about the transparency and functioning of the process as a whole.
>>
>>
>> In general, many in this group don't trust the average registrant
>> involved in a dispute, so it's not clear to me why their appeals, or
>> lack thereof, would guide whether we think the process is working.
>> Especially when there are a lot of defaults, the appeal rate doesn't
>> indicate much--similar to debt collection against poor people in the
>> US, where there are lots of defaults but when individual claims are examined they often don't hold up.
>> I expect that the rate of valid claims in the URS is much higher
>> than the rate of valid claims in US debt collection cases, but
>> that's just an expectation in advance of a lot of data. Relatedly,
>> the appealed cases are ones where the process is most likely to work
>> as intended, because the parties join the issues. But again, that's
>> an expectation, and should be examined.
>>
>>
>>
>> Rebecca Tushnet
>> Frank Stanton Professor of First Amendment Law, Harvard Law School
>> 703 593 6759
>> ________________________________
>> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of
>> BECKHAM, Brian <brian.beckham@wipo.int>
>> Sent: Tuesday, February 6, 2018 6:04:27 AM
>> To: Julie Bisland; gnso-rpm-wg@icann.org
>> Cc: gnso-secs@icann.org
>> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for
>> Review of all Rights Protection Mechanisms (RPMs) PDP Working Group
>> call on Thursday,
>> 01 February 2018
>>
>>
>> Thanks Terri, Julie,
>>
>>
>>
>> Having listened to the call recording, it is plain to see there is
>> strong (and well-reasoned) disagreement on whether to proceed with a
>> ³subjective and qualitative review² of URS decisions with respect to
>> the standard of evidence.
>>
>>
>>
>> Given this, and perhaps as a start, we can look to see the number of
>> cases which have been appealed -- whether on the merits or following
>> a default -- to see if registrants themselves believe the standard is being misapplied.
>> A statistically low number of appeals would suggest the answer may be ³no².
>>
>>
>>
>> If on the other hand, there is a significant instance of appeals,
>> that may merit the type of ³review² proposed by some WG members.
>> For that event, perhaps the WG should already agree to avoid an
>> approach that would risk re-litigating the decisions themselves;
>> instead, the WG could agree to only review select URS decisions with
>> a view to possible ³improvements² going forward (e.g., as I believe
>> Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
>>
>>
>>
>> Brian
>>
>>
>>
>> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf
>> Of Julie Bisland
>> Sent: Thursday, February 01, 2018 2:24 PM
>> To: gnso-rpm-wg@icann.org
>> Cc: gnso-secs@icann.org
>> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review
>> of all Rights Protection Mechanisms (RPMs) PDP Working Group call on
>> Thursday, 01 February 2018
>>
>>
>>
>> Dear all,
>>
>>
>>
>> Please find the attendance and AC Chat transcript of the call
>> attached to this email. The MP3 and Adobe Connect recording are
>> below for the Review of all Rights Protection Mechanisms (RPMs) PDP
>> Working Group call held Thursday, 01 February 2018 at 04:00 UTC.
>> Attendance and recordings of the call is posted on agenda wiki page:
>>
>> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
>>
>> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
>>
>>
>>
>> The recordings and transcriptions of the calls are posted on the
>> GNSO Master Calendar page:
>>
>>
>>
>> ** Please let me know if your name has been left off the list **
>>
>>
>>
>> Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
>>
>>
>>
>> Main wiki page for the working group:
>>
>>
>>
>> Thank you.
>>
>> Kind regards,
>>
>> Terri
>>
>>
>>
>>
>> _______________________________________________
>> gnso-rpm-wg mailing list
>> gnso-rpm-wg@icann.org
_______________________________________________
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There is a difference between expectation of confidentiality and a legal basis for confidentiality. My point is, I can’t imagine that a Complainant would be interested in sharing their complaint with a group containing other trademark attorneys and respondent attorneys. I could be wrong. Training, ongoing and moving forward, is entirely different from playing Monday morning quarterback. (My apologies for the U.S. reference….) Kind regards, Renee Fossen Director of Arbitration Forum 6465 Wayzata Blvd., Suite 480 Minneapolis, MN 55405 Phone 952.516.6456 E-mail rfossen@adrforum.com<mailto:rfossen@adrforum.com> www.adrforum.com From: Paul Keating [mailto:Paul@law.es] Sent: Wednesday, February 07, 2018 10:11 AM To: Fossen, Renee; Jonathan_agmon icann; Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Renee, Regarding the confidentiality, there is no provision in the Rules that would form the basis for confidentiality of filings. There is obviously nothing to prevent a panelist from quoting anything contained in the filings. And, of course there is nothing that prevents the opposing party from publishing any filings they have received. Thus, although they have typically not been published, it would be unusual for the parties to somehow believe they have some right of confidentiality in documents being submitted.. Nevertheless, I have suggested that disclosure of the underlying filings be gated in terms of access so that they are not needlessly publicized. If you feel there is some legal basis for asserting confidentiality please share it with us. Regarding NAF’s post WG report interactions with its panelists, that is a matter yet to be determined. WIPO, for example, is very active in promoting continuing education of panelists. This has never been seen as interference or undermining WIPO’s role as a neutral. And, in any event the result would be an assessment of whether or not, and to what extent, panel decisions reflected the established standards. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of "Fossen, Renee" <rfossen@adrforum.com<mailto:rfossen@adrforum.com>> Date: Wednesday, February 7, 2018 at 4:53 PM To: Jonathan_agmon icann <jonathan.agmon.icann@ip-law.legal<mailto:jonathan.agmon.icann@ip-law.legal>>, Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 As a URS Provider, Forum finds itself in a difficult position with respect to many of the decision review options set forth to date. We are concerned that the filing parties reasonably expected that their filings would be confidential. We are also concerned that if we intervened with the examiners on behalf of the WG regarding past decisions, or drew conclusions regarding the examiners’ aptitude to decide a particular case correctly, that we would undermine our role as a neutral administrator in the URS process. Forum will of course continue to cooperate with the WG, but cautions that any information outside of the decision itself should be gathered in a way that does not upset the integrity of the URS system. Kind regards, Renee Fossen Director of Arbitration Forum 6465 Wayzata Blvd., Suite 480 Minneapolis, MN 55405 Phone 952.516.6456 E-mail rfossen@adrforum.com<mailto:rfossen@adrforum.com> www.adrforum.com<http://www.adrforum.com> From: Jonathan_agmon icann [mailto:jonathan.agmon.icann@ip-law.legal] Sent: Tuesday, February 06, 2018 7:12 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 I agree with Georges’ comments and some comments made in the call that qualitative review may not be very constructive. The cases are determined by panelists from various backgrounds, legal system qualifications, and experience, and trying to second guess why decisions came out the way they do would not in my mind lead to any meaningful result. As stated in the call some decisions are better reasoned than others and therefore I do agree that if a review is undertaken the review may at best address the minimum requirements of information to be stated in the decisions by Panelists. Thanks, On 7 Feb 2018, at 7:34 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I agree with some of the comments made by Scott and others, but want to add a few additional thoughts. Looking at appeals is not really going to prove much of anything. It certainly does not tell you whether a UDRP or URS decision was correctly decided. First, the elements for establishing viable UDRP or URS cases are different in many respects from national laws that look at whether or not a domain name registration or use is infringing, and/or constitutes cybersquatting, unfair competition, defamation or libel etc. The point is that court actions can include many other claims or defenses depending on the jurisdiction you are litigating in. Second, UDRP and URS cases are streamlined procedures with limited records or evidence. Thus, a case could have been properly decided by a UDRP panelist based on the record presented, but on a full record could be seen otherwise. Sometimes Complainants or Respondents do a terrible job in laying out their cases and provide little to no evidence to support their contentions. So the fact that a court action appeal resulted in a decision that is different from a UDRP or URS decision does not prove that the case was wrongly decided in the first instance. Third, you cannot conclude that an appeal is always being filed because there is a viable case. There are ample examples of people filing appeals simply to force a settlement of the matter. For example, the cost of litigating in the US can be quite high and thus there are many examples of people filing questionable appeals with contingency fee attorneys, not because they legally believe they have a strong case, but believe and hope that the other side will decide to a pay a settlement amount that is far less than the anticipated litigation costs. There are also many examples of people who have registered domain names using addresses and registrars in jurisdictions where they can file cheap appeals to try to create problems for the parties who prevailed in the UDRP or URS -- and do so on the basis of securing pretextual flimsy rights in such jurisdictions. Again this is done to try and force a settlement and not because the losing party had a viable case. Consequently, if a case on appeal settled and something was paid to a Respondent, it does mean anything as to whether or not the UDRP or URS was correctly decided. It may simply mean that the Complainant found it cheaper and more expedient to pay off the Respondent as a way of avoiding a protracted and potentially costly litigation (i.e. a business decision). Lastly, I'm not sure how all appeals are tracked, but there likely as many post UDRP or URS lawsuits filed by Complainants against Respondents where the Complainant lost the UDRP or URS. Again this does not mean that the UDRP or URS decisions were incorrect. There are often cases where the UDRP or URS elements might not be established by the Complainant but there might be viable claims for cybersquatting, trademark infringement, unfair competition or defamation under national laws. Again the UDRP and URS are a streamlined process for a subset of potential claims and there are many cases that fall outside of the scope of what the UDRP or URS are intended for. One good example, is a case where a respondent initially registered a domain name in good faith, but then only uses it in bad faith to take advantage of another's trademark. Because the UDRP and URS have a conjunctive requirement of bad faith registration and use, the weight of decisions would rule against the Complainant and in favor of the Respondent. The Complainant might then be able to file a viable ACPA or trademark infringement claim and prevail. In that situation, the UDRP decision would have been correct and the Court decision would likewise be correct. Similarly, there are many case that involve situations where the identity of the registrant is unknown. This could be because the registrant uses bogus registration information (such as a fake name) or uses a privacy service that does not lift the privacy shield, etc. This might then result in a stilted record that is put before a panel. In a subsequent court case, there could be a much more robust record to establish a claim. So again you could not draw conclusions as to whether or not a UDRP or URS was correctly or incorrectly decided. In sum, looking at appeals without knowing (i) what evidence was presented on the UDRP or URS levels, (ii) whether the original whois information was accurate, or (iii) what the motivation for filing the appeal might be, will not be very probative. Similarly relying on blogs that discuss UDRP cases, or reviewing a case decision itself, does not necessarily tell you much if you don't know what was actually filed and considered by the Panel ruling on the matter. If you are going to get into trying to review the underlying pleadings and in all instances, a fortiori, the brand owner claims -- both of which I do not support -- then it seems, for full purposes of a review, that you should also want to get full information on the actual parties who registered the domain names to see if they gamed the system with fake names or privacy shields. You could certainly seek to obtain information on who paid for the registration of the domain names at issue, which might tell you who is really the party behind a registration. Again, I am not in favor of doing any of these types of reviews, but if there are those who suggest we go down one route, then these other routes should be explored as well as they would certainly have a bearing on cases where Complainants lost because a Respondent cleverly gamed the system. As for comments about the number of cases filed or appeals thereof, numbers alone don't say much. If the notion is to increase the number of filings, then perhaps a way to address that would be to change the standard for a UDRP or URS from bad faith registration and use to bad faith registration or use and/or include trademark infringement as a basis of a claim, perhaps provide more meaningful relief in URS cases -- such as a transfer of the domain name, perhaps better access to accurate Whois information or a workable mechanism to get accurate information on the actual registrant of a domain name. Georges Nahitchevansky -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 2:37 PM To: Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Hi Scott, I'm not sure why your browser would give warnings, but I didn't link to any dangerous sites. In your email, the links are mangled. You can see what the original links were on this mailing list's web archive at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002727.html i.e. WIPO, Domain Name Wire blog, archive (dot) org, Lexology, etc. Contrast those links with the mangled links in your email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002732.html While it may be true that some of these cases lack reasons for the orders, if they're settlements, they're still court orders or decisions (that enabled the registrar to release the domain name from any litigation hold) and that changed the outcome of the UDRP. The fact that UDRP decisions were overturned, and UDRP complainants agreed to pay damages or costs speaks for itself. Knowing the court case number, anyone could use PACER or other national court databases to look at the public filings and documents, and infer what the reasons might have been, had the case proceeded, based on the evidence and/or arguments presented. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Feb 6, 2018 at 2:17 PM, Scott Austin <SAustin@vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com<http://pupa.com>> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8g CisD8w8iAijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXi hZRNshnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvd QtsUOtwg8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/0 7/21/mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1h dACWod77IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvn nqzmEP56VNRpk4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8l Jn4c5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehn lfr0ONkTGY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.us courts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzg cZDLBXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl 9h5newNWNDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/0 7/22/50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLG elVVrPkRYuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZ s7ectA9nxVRf1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm 51IbqbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG 05TSsexK9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/ detail.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4 XKMVdRe1Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAy r-XQiHGxG44TwbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurispru dences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E, 1,d29bBLDOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ff iDDy7KlgB3xmGDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/search/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ 2JyqinuJafCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZ ykPVLyv1ALK4FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domai ns/challenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2W ohfKoubto77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&ty po=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj 6kIMBk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQh TJVMpDtsHsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_ b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc 0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu<mailto:rtushnet@law.harvard.edu>> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”.
If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart. I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group. 1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 Suspended Default <http://www.adrforum.com/domaindecisions/1635446D.htm> 09/15/2015 1676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim Denied Default <http://www.adrforum.com/domaindecisions/1676556D.htm> 06/12/2016 Best, Jon
I don't want to comment on other Examiner's decisions, but my general opinion is that also URS decisions are more understandable for both parties if Examiners are making some further comments on each finding (meaning more than just a "yes" or "no"...) / Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you 7 februari 2018 18:02:07 +01:00, skrev Jon Nevett <jon@donuts.email>:
I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart.
I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group.
1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 SuspendedDefault <http://www.adrforum.com/domaindecisions/1635446D.htm>09/15/20151676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim DeniedDefault <http://www.adrforum.com/domaindecisions/1676556D.htm>06/12/2016 Best,
Jon
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Interesting. The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision. ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references. This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Jon Nevett <jon@donuts.email> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Two URS decisions of note
I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart.
I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group.
1635446boucheron.pubBoucheron Holding SAS v. zhouhaotian et al.URS08/31/2015Suspended Default <http://www.adrforum.com/domaindecisions/1635446D.htm> 09/15/2015 1676556boucheron.pubBoucheron Holding SAS v. zhouhaotian et al.URS05/25/2016Claim Denied Default <http://www.adrforum.com/domaindecisions/1676556D.htm> 06/12/2016
Best,
Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Speaking solely in a personal capacity, the first decision is of the minimalist variety that concerns me, as there is no mention of either the trademark at issue or what if any content was at the website. Requiring a recitation of such essential facts would add no significant burdento the examiner's task and would make review of future URS decisions much more meaningful. The second decision probably goes above and beyond what is required in a URS case, but is welcome nonetheless (other than the lack of explanation of how the same domain/registrant wound up in a second URS less than a year after the prior one). The examiner notes that the website is dark and, rather than basing a suspension on application of the passive holding doctrine (which I would accept as a result if warranted)declined to suspend on the ground that bad faith use was merely speculative. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 07, 2018 12:21 PM To: Jon Nevett <jon@donuts.email>; gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Two URS decisions of note Interesting. The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision. ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references. This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Two URS decisions of note I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart. I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group. 1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 Suspended Default<http://www.adrforum.com/domaindecisions/1635446D.htm> 09/15/2015 1676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim Denied Default<http://www.adrforum.com/domaindecisions/1676556D.htm> 06/12/2016 Best, Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Phil, I think you have them reversed in time-order. The summary ruling without facts was the latest one (September 2015) and suspended the domain. The more detailed ruling was the earlier one (May 2015) and resulted in a denial of the complaint. Paul From: "Corwin, Philip" <pcorwin@verisign.com> Date: Wednesday, February 7, 2018 at 6:56 PM To: Paul Keating <paul@law.es>, "jon@donuts.email" <jon@donuts.email>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Two URS decisions of note
Speaking solely in a personal capacity, the first decision is of the minimalist variety that concerns me, as there is no mention of either the trademark at issue or what if any content was at the website. Requiring a recitation of such essential facts would add no significant burdento the examiner¹s task and would make review of future URS decisions much more meaningful.
The second decision probably goes above and beyond what is required in a URS case, but is welcome nonetheless (other than the lack of explanation of how the same domain/registrant wound up in a second URS less than a year after the prior one). The examiner notes that the website is dark and, rather than basing a suspension on application of the passive holding doctrine (which I would accept as a result if warranted)declined to suspend on the ground that bad faith use was merely speculative.
Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 07, 2018 12:21 PM To: Jon Nevett <jon@donuts.email>; gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Two URS decisions of note
Interesting.
The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision.
ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references.
This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Jon Nevett <jon@donuts.email> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Two URS decisions of note
I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart.
I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group.
1635446boucheron.pubBoucheron Holding SAS v. zhouhaotian et al.URS08/31/2015Suspended Default <http://www.adrforum.com/domaindecisions/1635446D.htm> 09/15/2015 1676556boucheron.pubBoucheron Holding SAS v. zhouhaotian et al.URS05/25/2016Claim Denied Default <http://www.adrforum.com/domaindecisions/1676556D.htm> 06/12/2016
Best,
Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I believe that it is important to review the complaints and facts described in both cases in order to get a conclusion and know more about the applicants too. Hector Héctor Ariel Manoff Vitale, Manoff & Feilbogen Viamonte 1145 10º Piso C1053ABW Buenos Aires República Argentina Te: (54-11) 4371-6100 Fax: (54-11) 4371-6365 E-mail: <mailto:amanoff@vmf.com.ar> amanoff@vmf.com.ar Web: <http://www.vmf.com.ar/> http://www.vmf.com.ar **************************************************************************** ************************************************************************ Esta comunicación tiene como destinatario a la persona o empresa a la cual está dirigida y puede contener información confidencial y reservada. Si el lector de este mensaje no es el destinatario o sus empleados o representantes, deberá proceder a reenviar el presente a su remitente. La distribución, diseminación o copiado de este mensaje podría constituir violación a la ley. Gracias. This email and any files transmitted with it are intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to recipient, you are hereby notified that any dissemination, distribution or copying of this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you. **************************************************************************** ************************************************************************ De: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] En nombre de Paul Keating Enviado el: miércoles, 7 de febrero de 2018 15:11 Para: Corwin, Philip; jon@donuts.email; gnso-rpm-wg@icann.org Asunto: Re: [gnso-rpm-wg] Two URS decisions of note Phil, I think you have them reversed in time-order. The summary ruling without facts was the latest one (September 2015) and suspended the domain. The more detailed ruling was the earlier one (May 2015) and resulted in a denial of the complaint. Paul From: "Corwin, Philip" <pcorwin@verisign.com> Date: Wednesday, February 7, 2018 at 6:56 PM To: Paul Keating <paul@law.es>, "jon@donuts.email" <jon@donuts.email>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Two URS decisions of note Speaking solely in a personal capacity, the first decision is of the minimalist variety that concerns me, as there is no mention of either the trademark at issue or what if any content was at the website. Requiring a recitation of such essential facts would add no significant burdento the examiners task and would make review of future URS decisions much more meaningful. The second decision probably goes above and beyond what is required in a URS case, but is welcome nonetheless (other than the lack of explanation of how the same domain/registrant wound up in a second URS less than a year after the prior one). The examiner notes that the website is dark and, rather than basing a suspension on application of the passive holding doctrine (which I would accept as a result if warranted)declined to suspend on the ground that bad faith use was merely speculative. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 07, 2018 12:21 PM To: Jon Nevett <jon@donuts.email>; gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Two URS decisions of note Interesting. The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision. ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references. This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Jon Nevett <jon@donuts.email> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Two URS decisions of note I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart. I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group. 1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 Suspended <http://www.adrforum.com/domaindecisions/1635446D.htm> Default 09/15/2015 1676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim Denied <http://www.adrforum.com/domaindecisions/1676556D.htm> Default 06/12/2016 Best, Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I don't think this is a case of a "2nd bite at the apple" since the complainant won the first URS proceeding and lost the second one. So, presumably, the domain name was re-registered by the respondent after the URS suspension expired in the first case. It would be fascinating to know if the complainant/trademark owner tried to register the domain name fr itself after the suspension expired but was unable to do so before the respondent got it again - that's certainly a significant limitation/hazard of the URS. Douglas M. Isenberg Attorney at Law <https://giga.law/> Phone: 1-404-348-0368 Email: <mailto:Doug@Giga.Law> Doug@Giga.Law Website: <https://giga.law/> Giga.Law From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 7, 2018 12:21 PM To: Jon Nevett <jon@donuts.email>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Two URS decisions of note Interesting. The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision. ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references. This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Jon Nevett <jon@donuts.email <mailto:jon@donuts.email> > Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: [gnso-rpm-wg] Two URS decisions of note I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart. I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group. 1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 Suspended <http://www.adrforum.com/domaindecisions/1635446D.htm> Default 09/15/2015 1676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim Denied <http://www.adrforum.com/domaindecisions/1676556D.htm> Default 06/12/2016 Best, Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Ur right about the dates. Sorry Phil. My bad eyes. Sent from my iPad
On 7 Feb 2018, at 21:54, Doug Isenberg <Doug@Giga.Law> wrote:
I don’t think this is a case of a “2nd bite at the apple” since the complainant won the first URS proceeding and lost the second one. So, presumably, the domain name was re-registered by the respondent after the URS suspension expired in the first case. It would be fascinating to know if the complainant/trademark owner tried to register the domain name fr itself after the suspension expired but was unable to do so before the respondent got it again – that’s certainly a significant limitation/hazard of the URS.
Douglas M. Isenberg Attorney at Law <image001.png> Phone: 1-404-348-0368 Email: Doug@Giga.Law Website: Giga.Law
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 7, 2018 12:21 PM To: Jon Nevett <jon@donuts.email>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Two URS decisions of note
Interesting.
The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision.
ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references.
This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified.
Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Jon Nevett <jon@donuts.email> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] Two URS decisions of note
I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart.
I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group.
1635446
boucheron.pub
Boucheron Holding SAS v. zhouhaotian et al.
URS
08/31/2015
Suspended Default
09/15/2015
1676556
boucheron.pub
Boucheron Holding SAS v. zhouhaotian et al.
URS
05/25/2016
Claim Denied Default
06/12/2016
Best,
Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Thanks. I thought I was, but was rushing to chair the RPM review call when I emailed and then was engaged the rest of the day. So what happened in the intervening nine months? No way to tell from the bare bones second decision. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 07, 2018 5:48 PM To: Doug@Giga.Law Cc: gnso-rpm-wg@icann.org Subject: [EXTERNAL] Re: [gnso-rpm-wg] Two URS decisions of note Ur right about the dates. Sorry Phil. My bad eyes. Sent from my iPad On 7 Feb 2018, at 21:54, Doug Isenberg <Doug@Giga.Law<mailto:Doug@Giga.Law>> wrote: I don’t think this is a case of a “2nd bite at the apple” since the complainant won the first URS proceeding and lost the second one. So, presumably, the domain name was re-registered by the respondent after the URS suspension expired in the first case. It would be fascinating to know if the complainant/trademark owner tried to register the domain name fr itself after the suspension expired but was unable to do so before the respondent got it again – that’s certainly a significant limitation/hazard of the URS. Douglas M. Isenberg Attorney at Law <image001.png><https://giga.law/> Phone: 1-404-348-0368 Email: Doug@Giga.Law<mailto:Doug@Giga.Law> Website: Giga.Law<https://giga.law/> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, February 7, 2018 12:21 PM To: Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Two URS decisions of note Interesting. The lack of any references in the 5446 decision to the trademark or any use of the domain precludes confirmation that the standard has in fact been met. This I would say is a quintessential example of a problem. The decision itself must at least contain the facts that were found so as to support the decision. ALSO, this raises the issue of the 2nd bite at the apple. We have no idea if the facts changed during the 9 month period (e.g. Was there any conflicting use of the domain). The decision is simply devoid of any references. This speaks both to a possible lack of application of the proper standard. However, it also tends to show that the panelists are not well informed as to what is required in any decision. This would seem to be an NAF issue resulting from a lack of administrative review of the decision for complaince AND in ensuring that panelists are properly educated and qualified. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>> Date: Wednesday, February 7, 2018 at 6:02 PM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Two URS decisions of note I wanted to point out two default cases between the same complainant and respondent relating to the same domain name that came our differently about 9 months apart. I am not commenting on the substance or what it means (I assume that there will be differing interpretations), but just wanted to share them with the group. 1635446 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 08/31/2015 Suspended Default<http://www.adrforum.com/domaindecisions/1635446D.htm> 09/15/2015 1676556 boucheron.pub Boucheron Holding SAS v. zhouhaotian et al. URS 05/25/2016 Claim Denied Default<http://www.adrforum.com/domaindecisions/1676556D.htm> 06/12/2016 Best, Jon _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hello, On Wed, Feb 7, 2018 at 6:30 PM, Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
So what happened in the intervening nine months? No way to tell from the bare bones second decision.
Already fully analyzed and explained in the prior post in this thread at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-February/002751.html Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hi Doug, On Wed, Feb 7, 2018 at 3:53 PM, Doug Isenberg <Doug@giga.law> wrote:
I don’t think this is a case of a “2nd bite at the apple” since the complainant won the first URS proceeding and lost the second one. So, presumably, the domain name was re-registered by the respondent after the URS suspension expired in the first case. It would be fascinating to know if the complainant/trademark owner tried to register the domain name fr itself after the suspension expired but was unable to do so before the respondent got it again – that’s certainly a significant limitation/hazard of the URS.
Actually, that presumption turns out to be incorrect. Via the WHOIS history at DomainTools: https://research.domaintools.com/research/whois-history/search/?q=boucheron.... on May 10, 2016, the domain name was still suspended using the ursns[1/2].adrforum.com nameservers: Domain Name: boucheron.pub Updated Date: 2015-11-02T18:08:11Z Creation Date: 2015-05-12T19:58:24Z Registry Expiry Date: 2016-05-12T19:58:24Z Sponsoring Registrar: Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) Domain Status: serverDeleteProhibited https://icann.org/epp#serverDeleteProhibited Domain Status: serverTransferProhibited https://icann.org/epp#serverTransferProhibited Domain Status: serverUpdateProhibited https://icann.org/epp#serverUpdateProhibited Registrant Name: zhouhaotian Registrant Organization: zhouhaotian Name Server: ursns1.adrforum.com Name Server: ursns2.adrforum.com (I removed various uninteresting fields from the above historical WHOIS record) Then, on May 14, 2016, the WHOIS history at DomainTools shows the domain name had expired (note the creation date above was May 12, 2015, so more than 1 year had passed), and the nameservers switched to the registrars' default expiration nameservers, as it went into the auto-renew period: https://research.domaintools.com/research/whois-history/search/?q=boucheron.... Domain Name: boucheron.pub Domain Status: autoRenewPeriod https://icann.org/epp#autoRenewPeriod Updated Date: 2016-05-13T20:00:39Z Creation Date: 2015-05-12T19:58:24Z Registry Expiry Date: 2017-05-12T19:58:24Z Name Server: expirens4.hichina.com Name Server: expirens3.hichina.com The 2nd URS was filed on May 25, 2016, during that auto-renew period! Had the TM holder done nothing at all, it would have simply not been renewed by the registrant. e.g. on May 24, 2016, the WHOIS was still like the above, with the same expired nameservers and autorenewperiod status. Then, as we know, the 2nd URS was unsuccessful. After that, the domain name did get deleted as per the normal deletion cycle, and as the current WHOIS demonstrates: https://whois.domaintools.com/boucheron.pub Boucheron registered the domain name via Com Laude with a creation date of July 25, 2016 (after the domain name went through the normal redemption grace period, and got deleted at Alibaba's registrar). So, the 2nd URS appears to have been triggered by (1) the registrar changing the nameservers at expiry away from the URS Suspension ones (perhaps this is a policy issue with regards to how the URS is implemented post-expiry), and (2) Boucheron not realizing that the name was simply going through the normal expiration and deletion cycle. It makes Boucheron's 2nd URS pleading look silly, e.g. the statement by the panelist: "Complainant lastly alleges that the subject domain name, “ … was acquired in bad faith on the following grounds: since its purchase in May 2015 nothing has appeared on the website under this domain name." Well, of course not, given that the domain name was suspended for most of that time! It's possible that the first URS was wrongly decided using the basis of "non-use" as proof of "bad faith use" (which the 2nd URS correctly rejected), but we don't know for sure given the lack of any detail/reasoning in the first URS decision. Had there actually been real bad faith usage (beyond non-use), presumably Boucheron would have just recycled their evidence from the first URS, and presented it at the 2nd URS. But, they didn't, so I think it's likely that real bad faith usage didn't exist at any time. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George, all, Thanka for digging this up, I came across the same details on DomainTools. After the first suspension, the TM owner was likely monitoring the domain for changes. As you point out, when they noticed the domain was updated and the Name Servers redelegated during the AutoRenew period, there was probably concern the domain was going to be reactivated; in fact, it could have been renewed by the registrant during this period. I'm speculating, but this likely prompted the second URS proceeding; in the 2nd case the complainant did not provide evidence of bad faith use, probably under the mistaken assumption that bad faith had already been established in the first case and that would carry over. However, as the examiner infers in the decision, if they did provide such evidence, they may have won the second case as well. I think this is another example of the confusion caused the existing remedy, which allows the losing registrant to renew the suspended domain upon expiry. Best, Claudio On Wed, Feb 7, 2018 at 6:01 PM George Kirikos <icann@leap.com> wrote:
Hi Doug,
On Wed, Feb 7, 2018 at 3:53 PM, Doug Isenberg <Doug@giga.law> wrote:
I don’t think this is a case of a “2nd bite at the apple” since the complainant won the first URS proceeding and lost the second one. So, presumably, the domain name was re-registered by the respondent after the URS suspension expired in the first case. It would be fascinating to know if the complainant/trademark owner tried to register the domain name fr itself after the suspension expired but was unable to do so before the respondent got it again – that’s certainly a significant limitation/hazard of the URS.
Actually, that presumption turns out to be incorrect. Via the WHOIS history at DomainTools:
https://research.domaintools.com/research/whois-history/search/?q=boucheron....
on May 10, 2016, the domain name was still suspended using the ursns[1/2].adrforum.com nameservers:
Domain Name: boucheron.pub Updated Date: 2015-11-02T18:08:11Z Creation Date: 2015-05-12T19:58:24Z Registry Expiry Date: 2016-05-12T19:58:24Z Sponsoring Registrar: Alibaba Cloud Computing Ltd. d/b/a HiChina ( www.net.cn) Domain Status: serverDeleteProhibited https://icann.org/epp#serverDeleteProhibited Domain Status: serverTransferProhibited https://icann.org/epp#serverTransferProhibited Domain Status: serverUpdateProhibited https://icann.org/epp#serverUpdateProhibited Registrant Name: zhouhaotian Registrant Organization: zhouhaotian Name Server: ursns1.adrforum.com Name Server: ursns2.adrforum.com
(I removed various uninteresting fields from the above historical WHOIS record)
Then, on May 14, 2016, the WHOIS history at DomainTools shows the domain name had expired (note the creation date above was May 12, 2015, so more than 1 year had passed), and the nameservers switched to the registrars' default expiration nameservers, as it went into the auto-renew period:
https://research.domaintools.com/research/whois-history/search/?q=boucheron....
Domain Name: boucheron.pub Domain Status: autoRenewPeriod https://icann.org/epp#autoRenewPeriod Updated Date: 2016-05-13T20:00:39Z Creation Date: 2015-05-12T19:58:24Z Registry Expiry Date: 2017-05-12T19:58:24Z Name Server: expirens4.hichina.com Name Server: expirens3.hichina.com
The 2nd URS was filed on May 25, 2016, during that auto-renew period! Had the TM holder done nothing at all, it would have simply not been renewed by the registrant. e.g. on May 24, 2016, the WHOIS was still like the above, with the same expired nameservers and autorenewperiod status.
Then, as we know, the 2nd URS was unsuccessful. After that, the domain name did get deleted as per the normal deletion cycle, and as the current WHOIS demonstrates:
https://whois.domaintools.com/boucheron.pub
Boucheron registered the domain name via Com Laude with a creation date of July 25, 2016 (after the domain name went through the normal redemption grace period, and got deleted at Alibaba's registrar).
So, the 2nd URS appears to have been triggered by (1) the registrar changing the nameservers at expiry away from the URS Suspension ones (perhaps this is a policy issue with regards to how the URS is implemented post-expiry), and (2) Boucheron not realizing that the name was simply going through the normal expiration and deletion cycle.
It makes Boucheron's 2nd URS pleading look silly, e.g. the statement by the panelist:
"Complainant lastly alleges that the subject domain name, “ … was acquired in bad faith on the following grounds: since its purchase in May 2015 nothing has appeared on the website under this domain name."
Well, of course not, given that the domain name was suspended for most of that time!
It's possible that the first URS was wrongly decided using the basis of "non-use" as proof of "bad faith use" (which the 2nd URS correctly rejected), but we don't know for sure given the lack of any detail/reasoning in the first URS decision. Had there actually been real bad faith usage (beyond non-use), presumably Boucheron would have just recycled their evidence from the first URS, and presented it at the 2nd URS. But, they didn't, so I think it's likely that real bad faith usage didn't exist at any time.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Scott, None of the cases in the US will discuss the UDRP decision. From the outset the first court opinions stated that the UDRP decision was not relevant and would not be considered. This was in response to the defense argument that the UDRP constituted an arbitration and was thus outside of the court¹s jurisdiction under the Arbitration Act. This is not necessarily the case in other jurisdictions some of which tend to treat the litigation as an ³appeaL¹ and thereafter conducting a de novo review. And there are some jurisdictions which either (a) reject any post UDRP litigation for lack of the ability to state a claim for relief (e.g. They have no ACPA or similar laws), or (b) find the UDRP to have been an arbitration and thus conclusive. Hope this helps. Paul On 2/6/18, 8:17 PM, "gnso-rpm-wg on behalf of Scott Austin" <gnso-rpm-wg-bounces@icann.org on behalf of SAustin@vlplawgroup.com> wrote:
George: Some of the links you provided raised safety concerns on my browser so I did not review every link, but for each case for which you provided alternate links I was able to get at least the domain press version. It appears all but the last are stipulated settlements with no court opinion or analysis of claims or any discussion of a legal basis for overriding the underlying UDRP result. To echo an earlier post, it is questionable what, if anything, can be drawn from the court sanctioned settlements as the defendants in each case might have just lacked the resources or resolve to defend their UDRP success in an action in US federal court. The same would apply to the default judgment you obtained in Canada for <pupa.com> which WIPO did post. These cases show no court analysis questioning the efficacy of the UDRP.
The 4th entry on your list is interesting but may be very limited to its facts, especially as the Hogan Lovells analysis rightly points out, after the French district court agreed with the UDRP result the French appellate court considered territoriality in an infringement action and relied upon the related website's territoriality carve out (tabs for only non-EU countries) to deny trademark infringement, consistent with French precedent, even in the presence of use of a mark in a .com global gTLD domain name. As HL rightly pointed out, "the assessment of trademark infringement is intrinsically different from the assessment conducted under the UDRP."
Best regards, Scott
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-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, February 6, 2018 9:02 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
P.S. While I have Brian's attention, I'd like to note that I've **repeatedly** brought to WIPO's attention various court appeals of UDRP decisions, yet they they never get posted to WIPO's page at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c hallenged/&c=E,1,PoV0aLE1t8_PgbqcdiLxKL0tvAU2CgEatRUI6TpbCcvpqvF8gCisD8w8i AijKAMyLx4MD3KyA6TKC1n4C9Gd5cfMcmRlqgOfX8tW9q1c0w,,&typo=1
I understand that others have attempted to also get cases added to that list, without success. Thus, perhaps we have a situation of low *reported* appeals, because of missing data with regards to court actions.
Here are 4 court cases that I brought to WIPO's attention already:
1. https://linkprotect.cudasvc.com/url?a=https://Soundstop.com&c=E,1,NPXihZRN shnHEMGlLFaHq7PTk5QqohVI49J-80RCiCStlxIPsMqsvZRw_5g2MwAfSjrYnxRQvdQtsUOtwg 8r9A9umsAX9FjS6mUYykungGnO5jGsw0JYiYgolQ,,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2016/07/21 /mike-mann-overturns-udrp-decision-court/&c=E,1,a8MkHb9J1psxxTor1hdACWod77 IUJlKgyLxhqAn-5NxX6Pf-ojz3Rphb9OfKMcXh0l9ryHtFznTlraJIlIuZIhvnnqzmEP56VNRp k4cVR9l1kp6-&typo=1
2. https://linkprotect.cudasvc.com/url?a=https://AustinPain.com&c=E,1,m8lJn4c 5bTXbrCfEi56r67BpoMX9iJJKMbhjlb0V-x4-EAvtcbbnL83_sEH8NvVEDAVRSaehnlfr0ONkT GY9uoFMqcSxuQcnIsLAagtRmYvwV5jUY-ZA6k9hRFjR&typo=1 -- http://ia601008.us.archive.org/18/items/gov.uscourts.cod.147273/gov.uscour ts.cod.147273.23.0.pdf
3. https://linkprotect.cudasvc.com/url?a=https://SDT.com&c=E,1,SFRYhm8xzgcZDL BXGRNmWZjwA0gNigrm0iTvIpGEMCfmOKzjg1qQB5BcU54tJhmtfmVzXXx3ayD7RSWl9h5newNW NDJm9smvaGVCiCKSx_GKw4Z2iCIfG5A,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://domainnamewire.com/2015/07/22 /50000-penalty-for-filing-a-frivolous-udrp/&c=E,1,c96-Hl6Rr0cVRBLGelVVrPkR Yuec5n9wX2n5FsHf6DWxGUdpG-veEYtY2rb4yo_rYMhVTxrG1bZ37fd1A70mwZs7ectA9nxVRf 1IrhBQnX-tXBEaOPEOaj4,&typo=1
4. https://linkprotect.cudasvc.com/url?a=https://Moobitalk.com&c=E,1,MSUm51Ib qbsVYsieh6FzZACt_baEGvJeMK91hZnKxi6vjcKl7viHcSygfQN1CVQ81cAGxr56mG05TSsexK 9_PO7H4FzPIARjR8QV1WMPORfD8e4,&typo=1 -- https://linkprotect.cudasvc.com/url?a=http://www.lexology.com/library/deta il.aspx%3fg%3d5899d5f9-3bbc-416e-a9a5-7233a147b62c&c=E,1,ibAAgsQu4XKMVdRe1 Vuv64tKkxpzawDxcA-kjzUr9fKhyOV3JcyVj-kXCoVbDD6smUdkMkJY5Vi3AAyr-XQiHGxG44T wbnDpVipyHVjDFiuohck,&typo=1 https://linkprotect.cudasvc.com/url?a=https://www.legalis.net/jurisprudenc es/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/&c=E,1,d29bBL DOvi4Vh5eHNhyAOGuAZfN5enSzi2q2AFiGeZhCezp-jwMcXrK30_R5Wqe-H0ffiDDy7KlgB3xm GDL7YHKWufKtzJPQAzDFviCnO_5AWD-5fWo3bGGk&typo=1 https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/s earch/text.jsp%3fcase%3dD2013-0835&c=E,1,hdXQJijwb0NiNbvoi2crydNmZ2JyqinuJ afCimy24iQ3pjqwVPKji95HeSyT3Fg3iFzW8wZAs8Ii458dNvQEYyilsm6n9MZykPVLyv1ALK4 FywjpoKe_x9c1WUfl&typo=1
Perhaps similar cases exist for the URS (although, less likely, given that new gTLD domains tend to be worth far less than .com domain names, and thus it makes less economic sense to invest money in legal fees to defend them).
Let's check back at:
https://linkprotect.cudasvc.com/url?a=http://www.wipo.int/amc/en/domains/c hallenged/&c=E,1,g29GkDAAUCauVVQL4VCRL3ImHpynA4DsIhSZepwHtOTLk8K2WohfKoubt o77tXAyimx-vEjzdCnUIMUuHFUmW-vGHIyhB4GMd3BaqLvuZDPTpVlj74c3&typo=1
and see if those 4 cases above get added.
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,7j4Bj6kIM Bk1q0UKM_qsgMtdaLWngHgdpEjHJEIhGFl9qmEl3FZXUOKAeLPsgW5u4K4oM_oaaQhTJVMpDts HsgujioK_XvWF3HO1BnJUzmUNuwN9SoDcYw,,&typo=1
On Tue, Feb 6, 2018 at 8:39 AM, George Kirikos <icann@leap.com> wrote:
Well said, Rebecca.
Furthermore, if a low level of appeals is an appropriate metric, then I would think that the low overall usage rate of the entire URS procedure, relative to the number of domain names registered, should also be an appropriate metric. The same would apply to the very low sunrise usage. That would support the elimination of the sunrise and URS procedures, given their low adoption.
The fact that just 33 survey responses in the INTA survey were considered by some here to be very powerful evidence (LOL!) speaks for itself.
Unlike those 33 survey responses which purported to be statistically representative of all TM holders worldwide and valid, we can review the entire universe of URS decisions (thus it's no longer a *sample* of a larger population, where getting a reliable sample might be hard; it's the *entire* population being studied).
Sincerely,
George Kirikos 416-588-0269 https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Nx2_b Ax3ArEKi7l08OPkgU4F5Lr10lbP91feFtwSGJstrUkptiXNeX6_TXP9mvwdVzZl4JIBMc0 F9mG9hQF7W5458mfAALX88YHlNwUWnvkJ&typo=1
On Tue, Feb 6, 2018 at 8:26 AM, Tushnet, Rebecca <rtushnet@law.harvard.edu> wrote:
I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole.
In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined.
Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of BECKHAM, Brian <brian.beckham@wipo.int> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Thanks Terri, Julie,
Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a ³subjective and qualitative review² of URS decisions with respect to the standard of evidence.
Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be ³no².
If on the other hand, there is a significant instance of appeals, that may merit the type of ³review² proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible ³improvements² going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements).
Brian
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018
Dear all,
Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB
MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3
Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/
The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar
** Please let me know if your name has been left off the list **
Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/
Main wiki page for the working group: https://community.icann.org/x/wCWAAw
Thank you.
Kind regards,
Terri
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I find the analogy of domain name registrants who are respondents in URS proceedings to “poor people in the US” who are subject to debt collection actions, in addition to being an expectation in advance of a lot of data, to be completely inappropriate. ________________________________ Christopher Thomas Partner [Parker Poe] PNC Plaza | 301 Fayetteville Street | Suite 1400 | Raleigh, NC 27601 Office: 919.835.4641 | Fax: 919.834.4564 | vcard<http://www.parkerpoe.com/GetVcard?ID=28245> | map<https://www.google.com/maps/place/PNC+Plaza,+Raleigh,+NC+27601> Visit our website at www.parkerpoe.com<http://www.parkerpoe.com> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Tushnet, Rebecca Sent: Tuesday, February 06, 2018 8:26 AM To: BECKHAM, Brian; Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 ***Caution: External email*** ________________________________ I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole. In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined. Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Thanks Terri, Julie, Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a “subjective and qualitative review” of URS decisions with respect to the standard of evidence. Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be “no”. If on the other hand, there is a significant instance of appeals, that may merit the type of “review” proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible “improvements” going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements). Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Dear all, Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_uAxyB&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=B6_xLKTzbSMugFS24znCh5-AOPHfaylATml5PH6QU2Q&e=> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3<https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gnso-2Drpm-2Dreview-2D01feb18-2Den.mp3&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=a5MR5HKPZXxEzSYhPVLgBP-z5u9CfwX-FYF4NAYkUmE&e=> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/<https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p6mww2tis6b_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=RJs2bS_ca1WJo0SpJIVmki2x7PKi3Vys_oqa-pAwDgA&e=> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_calendar&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=ur-xpgtinOuwMSg8wnX6YTUr9mQF4tVqWR5Uu867J80&e=> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_gnso-2Drpm-2Dwg_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=d08WTVPvoIs8pbaizleMN-TkGoViJWukVFjCsoQa_as&e=> Main wiki page for the working group: https://community.icann.org/x/wCWAAw<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_wCWAAw&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=WDlCIXZEF11cuAabLb8GpAmIJEA5R1y6gEpqKCi5D1A&e=> Thank you. Kind regards, Terri PRIVILEGED AND CONFIDENTIAL: This electronic message and any attachments are confidential property of the sender. The information is intended only for the use of the person to whom it was addressed. Any other interception, copying, accessing, or disclosure of this message is prohibited. The sender takes no responsibility for any unauthorized reliance on this message. If you have received this message in error, please immediately notify the sender and purge the message you received. Do not forward this message without permission. [ppab_p&c]
Thanks Rebecca, On this perhaps somewhat semantic point, I tend to agree, and I could be wrong but I think what is actually meant is a "substantive" review (which as was noted by several people on the call, risks re-litigating cases without the benefit of the pleadings - and drawing policy implications therefrom). Below I was merely quoting from the transcript. In terms of the appeals/lack thereof, with respect, I think it is pretty well articulated below ("to see if registrants themselves believe the standard is being misapplied"). Another perhaps more colloquial way of putting it would be to say, if there are misgivings about the standard being applied in the URS - and to your point about drawing policy inferences form the rate of default, and especially when it literally costs nothing* to respond - are people putting their money where their mouth is, so to speak? * Except in consolidated cases against 15 or more domain names, which I think may not yet have even occurred. The point was that we are in somewhat of a chicken-and-egg scenario, so my suggestion was merely intended to propose a more rational and focused first pass to review select cases, if indeed it is even the collective consensus of the WG to do so (which so far seems far from clear). If a first pass at such a narrower dataset reveals it would be beneficial to expand the effort, the WG could take it from there. Best regards, Brian From: Tushnet, Rebecca [mailto:rtushnet@law.harvard.edu] Sent: Tuesday, February 06, 2018 2:26 PM To: BECKHAM, Brian; Julie Bisland; gnso-rpm-wg@icann.org Cc: gnso-secs@icann.org Subject: Re: Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 I'd like to reiterate to the mailing list that "subjective" is often being used in an undefined and I think unjustified way. As was pointed out on the call, there are plenty of qualitative inquiries on which we can expect agreement and which shouldn't be deemed "subjective" by any standard: did the panelist identify the domain name at issue? Did the panelist identify the abusive use? Aggregated, these individual observations provide valuable information about the transparency and functioning of the process as a whole. In general, many in this group don't trust the average registrant involved in a dispute, so it's not clear to me why their appeals, or lack thereof, would guide whether we think the process is working. Especially when there are a lot of defaults, the appeal rate doesn't indicate much--similar to debt collection against poor people in the US, where there are lots of defaults but when individual claims are examined they often don't hold up. I expect that the rate of valid claims in the URS is much higher than the rate of valid claims in US debt collection cases, but that's just an expectation in advance of a lot of data. Relatedly, the appealed cases are ones where the process is most likely to work as intended, because the parties join the issues. But again, that's an expectation, and should be examined. Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of BECKHAM, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> Sent: Tuesday, February 6, 2018 6:04:27 AM To: Julie Bisland; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: Re: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Thanks Terri, Julie, Having listened to the call recording, it is plain to see there is strong (and well-reasoned) disagreement on whether to proceed with a "subjective and qualitative review" of URS decisions with respect to the standard of evidence. Given this, and perhaps as a start, we can look to see the number of cases which have been appealed -- whether on the merits or following a default -- to see if registrants themselves believe the standard is being misapplied. A statistically low number of appeals would suggest the answer may be "no". If on the other hand, there is a significant instance of appeals, that may merit the type of "review" proposed by some WG members. For that event, perhaps the WG should already agree to avoid an approach that would risk re-litigating the decisions themselves; instead, the WG could agree to only review select URS decisions with a view to possible "improvements" going forward (e.g., as I believe Jeff Neuman proposed, suggesting that decisions should contain some minimal reasoning/elements). Brian From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Bisland Sent: Thursday, February 01, 2018 2:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Cc: gnso-secs@icann.org<mailto:gnso-secs@icann.org> Subject: [gnso-rpm-wg] Recordings, Attendance, & AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Thursday, 01 February 2018 Dear all, Please find the attendance and AC Chat transcript of the call attached to this email. The MP3 and Adobe Connect recording are below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Thursday, 01 February 2018 at 04:00 UTC. Attendance and recordings of the call is posted on agenda wiki page: https://community.icann.org/x/uAxyB<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_uAxyB&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=B6_xLKTzbSMugFS24znCh5-AOPHfaylATml5PH6QU2Q&e=> MP3: https://audio.icann.org/gnso/gnso-rpm-review-01feb18-en.mp3<https://urldefense.proofpoint.com/v2/url?u=https-3A__audio.icann.org_gnso_gnso-2Drpm-2Dreview-2D01feb18-2Den.mp3&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=a5MR5HKPZXxEzSYhPVLgBP-z5u9CfwX-FYF4NAYkUmE&e=> Adobe Connect recording: https://participate.icann.org/p6mww2tis6b/<https://urldefense.proofpoint.com/v2/url?u=https-3A__participate.icann.org_p6mww2tis6b_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=RJs2bS_ca1WJo0SpJIVmki2x7PKi3Vys_oqa-pAwDgA&e=> The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group-2Dactivities_calendar&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=ur-xpgtinOuwMSg8wnX6YTUr9mQF4tVqWR5Uu867J80&e=> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_gnso-2Drpm-2Dwg_&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=d08WTVPvoIs8pbaizleMN-TkGoViJWukVFjCsoQa_as&e=> Main wiki page for the working group: https://community.icann.org/x/wCWAAw<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_wCWAAw&d=DwMFAg&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=2682DBiTWiUf_zL-BdajRcoU9eSWQS053WkHQCCLKIA&s=WDlCIXZEF11cuAabLb8GpAmIJEA5R1y6gEpqKCi5D1A&e=> Thank you. Kind regards, Terri
participants (16)
-
Ariel Manoff -
BECKHAM, Brian -
claudio di gangi -
Corwin, Philip -
Doug Isenberg -
Fossen, Renee -
George Kirikos -
Jon Nevett -
Jonathan_agmon icann -
Julie Bisland -
Nahitchevansky, Georges -
Paul Keating -
Petter Rindforth -
Scott Austin -
Thomas, Christopher M. -
Tushnet, Rebecca