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051040040 IGO Work Track Team Meeting
Paul McGrady
29:24
Good morning/afternoon/evening, All.
Berry Cobb
30:37
Link to proposed recs: https://docs.google.com/document/d/13gMZKUB0KEo1AP7pb5G_yWWsSRdFDDjgQO2RKEf9Bk8/edit
Paul McGrady
32:05
Just a few tweaks in lieu of a stand alone strawbeing
Julie Bisland - ICANN Org
32:31
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en
Jeff Neuman
36:09
Can we publish the Initial Report since that may be during ICANN's Public Comment Moratorium?
Mary Wong - ICANN Org
37:01
@Jeff, the Work Track can certainly circulate the report to all the community groups and start the Public Comment period when the moratorium ends (in late August).
Brian BECKHAM (WIPO)
37:07
Sorry for perhaps an obvious questions, but what is "ICANN's Public Comment Moratorium"?
Jeff Neuman
38:48
And we still need to have 40 days after the platform opens for comment?
Mary Wong - ICANN Org
39:24
@Brian, we need to have a period during which there are no Public Comment proceedings while we transition the existing platform to the new mechanism on ITI.
Paul McGrady
39:53
Wil do Chris
Mary Wong - ICANN Org
41:28
@Jeff, there can be exceptions.
Mary Wong - ICANN Org
41:47
@Chris, yes, exactly.
Paul McGrady
41:47
Mary- if Phase 2 of RPMs PDP starts in the next few months, could we dovetail into that?
Mary Wong - ICANN Org
42:28
@Paul, we haven’t looked into that specifically as our understanding was that the Work Track will complete its Initial Report before the GNSO Council re-charters Phase 2 of RPMs.
Brian BECKHAM (WIPO)
47:48
Right, so maybe the language is in the wrong spot, but it was to close that procedural point.
Brian BECKHAM (WIPO)
54:06
On phone now
Paul McGrady
56:11
Why not just make the agreement to arbitrate two-fold: (1) an agreement to arbitrate and (2) an agreement (at the time of agreement) as to which choice law will apply. If there is not agreement on (2), then there is not agreement on (1).
Jeff Neuman
57:11
This will not work for registrants that I have spoken with about this.
Brian BECKHAM (WIPO)
57:38
@Jeff, can you be more specific about what will not work?
Paul McGrady
57:57
@Chris - agree, which is another reason to leave this to the parties.
Jeff Neuman
58:31
Registrants are being asked to agree to remove the Mutual Jurisdiction clause of the UDRP. Thus, their ability to have redress substantively is hampered (In their view)
Brian BECKHAM (WIPO)
59:20
but @Jeff, with respect, that totally misses the point / overlooks the entire exercise in front of us
Jeff Neuman
59:41
@Brian - How so?
Jeff Neuman
01:00:00
IGOs are having the mutual jurisdiction clause removed.
Brian BECKHAM (WIPO)
01:00:01
We are creating the avenue for redress (and, nothing STOPS anyone from going to court)
Jeff Neuman
01:00:37
@Brian - you are taking away a clause that has been used (at least in the US) as a waiver for state actors
Paul McGrady
01:00:40
If no arbitration, the parties could go to court. @Jay, also forcing IGO's hands because there is no guarantee that an IGO will get its immunity recognized in the courts where the registrant is from.
Jeff Neuman
01:00:42
and IGOs
Brian BECKHAM (WIPO)
01:01:22
So Jay, what would you propose?
Jeff Neuman
01:01:50
I think Jay was in favor of the language I suggested
Jeff Neuman
01:03:16
@Susan - The issue is that not all jurisdictions recognize a cause of action in this case
Susan Anthony, USPTO
01:04:53
@Jeff, I'm not sure I understand your question. Or, if I do, I suppose the bigger question is which law applies for which issue(s)?
Jeff Neuman
01:05:11
@Susan - I can explain in my comment
Paul McGrady
01:09:30
But that is the same boat that registrants are in now if a complainant chooses the respondent's jurisdiction, so I've lost your narrative. Would you mind hopping back on to clarify?
Paul McGrady
01:09:37
+1 Chris
Jay Chapman
01:10:42
The traditional Tm complainant gets to choose post-udrpjurisdiction/law under a typical udrp?
Paul McGrady
01:11:17
@Jay - no. The TM owner has to pick the respondent's jurisdiction or the respondent's registrar's jurisdiction. Those are both choices made by the respondent which limits Complainant's choices.
Jeff Neuman
01:11:35
@Jay - Yes, but if they choose something other than the mutual jurisdiction, they would have to show personal jurisdiction over the trademark owner
Jay Chapman
01:12:04
Yup
Jeff Neuman
01:12:43
The Complainant puts that in their UDRP Complaint
zzzVanda Scartezini - Brazil (alternate)
01:16:10
agree Paul
Brian BECKHAM (WIPO)
01:17:13
Can you please explain the scope concern a bit more Chris?
Chris Disspain
01:17:48
will do Brian
Jay Chapman
01:18:43
Agree Jeff
Jeff Neuman
01:19:15
No I am not
Jeff Neuman
01:19:29
I am talking about A losing respondent choosing another place
Jeff Neuman
01:21:42
No Paul, this is ONLY where the parties agree to arbitration
Paul McGrady
01:22:31
@Chris, I have a similar problem of overreach by baking in too much of the UDRP into arbitration, which was meant to be a substitute for court, not a substitute for a (so far non-existent) UDRP appeals panel
Jeff Neuman
01:22:51
An IGO does not have to file a UDRP. It could go to a Court that it think may have jurisdiction to hear the complaint
Paul McGrady
01:23:54
Correct
Brian BECKHAM (WIPO)
01:23:56
@Jeff, that really overlooks the fundamental issue that brought us here
Paul McGrady
01:24:08
Correct
Jeff Neuman
01:24:29
@Brian - no, I am not. I am just narrowing this to solving ONLY the issue that brought us here and not all other issues that you may have
Brian BECKHAM (WIPO)
01:27:27
I think what Paul is saying is that the difference is the impact on staying, or not, the UDRP decision implementation (but nothing stops a party from *going* to court)
Paul McGrady
01:28:35
Just so that it clear, we are talking about cutting out this principal of the UDRP while promoting the "two jurisdictions that Respondents choose": The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.
Jeff Neuman
01:28:37
@David - in this case it is not contract law, but rather IP law.
Paul McGrady
01:29:00
And also this one: All other disputes between you and any party other than us regarding your domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between you and such other party through any court, arbitration or other proceeding that may be available.
Jeff Neuman
01:29:20
@Paul - No I don't believe we are.
Jeff Neuman
01:29:45
We are only saying that if we are having binding arbitration in this narrow case, then you use the law of …...
Jeff Neuman
01:29:59
You can still always forgo arbitration and try your hand in court
Jeff Neuman
01:31:46
If I were an IGO, I would choose Australia because there is NO cause of action. Thus the IGO who has won a UDRP, automatically would win
Paul McGrady
01:32:20
1. The Mutual Jurisdiction is in the Rules, not the UDRP itself. 2. Jurisdiction is not the same thing as Choice of Law. We are conflating that.
Jeff Neuman
01:33:07
@Paul - But whose law does the mutual jurisdiction apply? Yes, we are conflating, but with support
Paul McGrady
01:33:46
@Jeff - neither the Policy nor the Rules say, so when we bake in something BIG like that which doesn't exist, it is major surgery
Jeff Neuman
01:34:31
@Paul - We are removing the mutual jurisdiction clause for IGOs. That is already major surgery for registrants. We are now trying to sew it up :)
Paul McGrady
01:36:42
@Jeff - I suppose, but in our discussion we can't act as if Choice of Law is somehow settled in the UDRP already and we can just infuse it into an independent arbitration. It isn't.
Brian BECKHAM (WIPO)
01:38:31
(I could be wrong, but I really do think the substantive briefs would be reasonably contained (given that many parties are familiar with the UDRP or ACPA or their home jurisdiction ; )
Jeff Neuman
01:38:50
@Paul - if you want to say that the Registrant chooses the choice of law, that is what happens today in courts, Registrants would support that.
Paul McGrady
01:38:56
@Brian - leaving it to the arbitrator makes sense, but trying to put a thumb on the scale by infusing it with UDRP Choice of Law principals (which don't exist) doesn't seem appropriate. @Chris - yes, arbitration is expensive. Each party will have to decide if the domain name is worth it.
Brian BECKHAM (WIPO)
01:40:09
@Jeff, what about if the IGO (or registrant for that matter) could also introduce principles it felt were appropriate?
Jeff Neuman
01:40:57
We could always say, absent mutual agreement otherwise, the law of the location of the registrant or registrar apply
Paul McGrady
01:41:40
Will do Chris. I also like Brian's "leave it to the arbitrator" solution.
Jeff Neuman
01:42:09
@Paul - but that too is a departure under the current UDRP
Mary Wong - ICANN Org
01:42:17
@Paul, that option has been noted in the Google Doc as an alternative (arbitral panel to decide).
Jeff Neuman
01:42:33
As you stated, the party going to court chooses the law (By choosing the jurisdiction).
Jeff Neuman
01:42:41
So long as the court can exert jurisdiction
Brian BECKHAM (WIPO)
01:43:36
May I ask that if people make updates to the Google Doc, they drop a note to the list (if this is not done automatically)?
Jeff Neuman
01:44:55
all - I need to drop.....
Mary Wong - ICANN Org
01:45:25
@Brian, that will be helpful as there’s no automatic notification to the list when someone adds comments - alternatively, the document “owner” (in this case, staff) gets notified and we can send updates to the list, but that may be more clunky.
Julie Bisland - ICANN Org
01:50:49
**Next meeting: Monday, 12 July 2021 at 15:00 UTC**