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051040040 IGO Work Track Team Meeting - Shared screen with speaker view
Paul McGrady
24:26
Is this the format we will use for all our calls?
Terri Agnew
25:03
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en**Members: reminder, when using chat, please select all panelists and attendees in order for everyone to see chat.
Berry Cobb
26:22
https://docs.google.com/forms/d/e/1FAIpQLSdZH32v1N1jWHeX5WRMVuolLCOZJqY_YoQXopPuFqT_vcOo_A/viewform
Berry Cobb
26:43
https://community.icann.org/display/GNSOIWT/Alternate+Log+-+IGO+WG
Paul McGrady
28:51
Thanks Steve and Chris. That all makes sense.
Jeff Neuman
32:09
Perhaps it also makes sense to go through the UDRP and what puts us in the position for the narrow part we need to address.
Jeff Neuman
32:43
So, for example, the only time this really comes up is in the narrow circumstance where the IGO wins a UDRP Case and the Registrant wants to appeal.
zzzVanda Scartezini (alternate)
33:03
thanks Jeff, this could help to identify which path we could follow or not
Jeff Neuman
33:07
So, its only an arbitration (after the UDRP case)
Chris Disspain
33:17
thanks Jeff…I’ll ask you expand on that when Brian has completed
Jeff Neuman
33:47
ok
zzzVanda Scartezini (alternate)
37:48
thanks Brian this was my question. so, URRDP is not an arbitration process under legal point of view.
Paul McGrady
42:59
@Jeff, correct, but that is the case in the US Do you have knowledge of de novo standards in other jurisdictions?
Jeff Neuman
44:47
@Paul - my point is that the UDRP does not define the standard of review in any jurisdiction
Jeff Neuman
45:11
It is whatever the "Court" wants it to be
zzzVanda Scartezini (alternate)
45:54
Jeff is clear in this. URDP under legal jurisdiction can simply and in most cases be ignored. i would like to some lawyer to go deeper on the arbitration alternative
Jeff Neuman
46:28
Can we see the relevant GAC Advice on this issue?
Berry Cobb
47:29
@Jeff, page 6 of the briefing doc contains the GAC advice on this issue.
Jeff Neuman
47:36
Thanks Berry!
Jeff Neuman
47:54
So ICANN 51 GAC Advice states the UDRP should not be amended
Jeff Neuman
48:29
ICANN59, the GAC Advice talks about jurisdiction
Jeff Neuman
51:21
Sorry Paul, why would the 10-day period to "appeal" have to go?
Jeff Neuman
53:44
Why can we not just remove the jurisdiction clause for IGOs and just create a separate panel to review the case? That keeps the UDRP as is and keeps all the due process provisions for registrants
Paul McGrady
55:37
@Jeff, building out a WIPO-driven an appeal process isn't a tweak, it is a new mechanism that references the old mechanism. And, most importantly, it just kicks the can down the road - you still end up with a decision that a non-IGO loser will want to challenge in a court.
zzzVanda Scartezini (alternate)
56:03
jeff , or remove the initial URDP process between both sides and jus apply a more independent arbitration since the beginning? not been a lawyer but member of arbitration in the private sector I would like to hear your opinion
Paul McGrady
01:00:20
And IGOs can participate in Phase 2 of the RPMs PDP to push for some of these broader changes to the UDRP that Brian B. has pointed out would be helpful to IGOs.
Brian Beckham (WIPO)
01:00:31
Jeff -- much of what I mentioned is exactly in the Small Group proposal
Brian Beckham (WIPO)
01:02:19
https://www.icann.org/en/system/files/correspondence/crocker-to-austin-et-al-04oct16-en.pdf
Jeff Neuman
01:05:50
Thanks. Sorry to bug you again, but do you have an easy link to the legal work that done by the previous PDP
Steve Chan
01:07:17
@Jeff, here: https://community.icann.org/x/z4BYAw
Berry Cobb
01:07:56
https://community.icann.org/download/attachments/56131791/Swaine%20-%20Updated%20IGO%20Immunity%20Memo%20-%2017%20June%202016.pdf?version=1&modificationDate=1467111617000&api=v2
Jeff Neuman
01:12:24
@Brian, but we are not here to solve all of the issues for IGOs. We have a very specific mandate and we need to stick to the mandate. As the GNSO Council Liaison to the GAC, it is part of my role to ensure that we stick to the mandate and to be able to communicate that mandate to the GAC.
Brian Beckham (WIPO)
01:15:37
"IB" is WIPO
Jeff Neuman
01:20:21
@Susan - so what would be a recommendation to give IGOs standing to bring a claim against a registrant for registration and use in bad faith?
Brian Beckham (WIPO)
01:20:28
Adding to what Susan says (about 6ter / amending the UDRP), if that is the case (which I agree it is), then it is not clear why the bad faith issue would not be on the table.
Jeff Neuman
01:21:46
@Brian - because within the domain name system, it is generally accepted by Consensus of the policy community as well as the laws globally is required to remove a domain name (license) from a registrant.
Steve Chan
01:22:32
Can I jump in after Susan, for some context from the previous WG?
Brian Beckham (WIPO)
01:22:57
@Jeff, the same can be said for TM standing
Jeff Neuman
01:24:02
@Brian - Correct. That is why having a trademark registration is not the only thing you need. You need to show bad faith to take the license away from a Registrant.
Berry Cobb
01:25:24
Just to note that the Recs#1 - #4 are pending with the ICANN Board and not adopted yet by them as Consensus Policies.
John McElwaine
01:25:39
This group can put forth an "appropriate policy solution [for Rec 5] . . . that is generally consistent with Recommendations 1, 2, 3 & 4 of the PDP Final Report".
Susan Anthony
01:27:22
@Steve, I appreciate your observation, but whether 6ter is a basis for standing is not a decision that can be made by the panelist, w/o in effect amending the UDRP.
Steve Chan
01:28:22
@Susan, as staff, I certainly have no opinion on the recommendation, just noting where it started and where it ended.
Jeff Neuman
01:29:13
[As a panelist] what would be the guidance given as to what facts/circumstances would use to establish standing? Perhaps that facts/circumstances could include being listed with the IB (WIPO)
Jeff Neuman
01:29:29
That would not require any change to recommendation 2
Jeff Neuman
01:29:41
Or at least would be consistent with Rec 2
Susan Anthony
01:29:52
@Steve, appreciate your contributation nonetheless, and hope that our exchange is helpful to others. Basically, as 6ter is not equivalent to protection, it is not a basis for the UDRP as currently written.
Berry Cobb
01:30:25
Time check. 20 min remaining
Jeff Neuman
01:31:30
@Susan - so we need to think about what would give standing for an IGO to bring an action. The second 2 elements (Respondent has no legitimate rights....) and (Registrant has registered and used the domain name in bad faith) looks at whether the IGO should be successful in a UDRP action
Jeff Neuman
01:32:09
So, perhaps we do not need to state that 6ter gives them any rights.....it just allows them to proceed to the next 2 elements
Kris Seeburn
01:33:34
the list is limited as per our review at The Hague. because igo can create a new one a new acronym anytime. limiting it is a way of tying igo
Kris Seeburn
01:34:02
things and new acronyms come up very often
Paul McGrady
01:34:40
Silly question: are IGOs prohibited from filing trademark applications?
Jeff Neuman
01:36:55
Without an IGO being able to get into the funnel, there is no need for an appeal
Jeff Neuman
01:37:15
Plus it addresses (or seeks to address) GAC Advice on the topic
Berry Cobb
01:37:55
To Paul's question, I think a limited number of IGOs have used the UDRP and cited their TMs.
Kris Seeburn
01:39:38
why don’t we put in that any. registrant having registered in their jurisdiction can follow the ccNSO as I said before unless they are international and have registered their brand or trademark in jurisdiction and international ... but I still feel we look at WIPO and arbitration rules of the UN
Berry Cobb
01:39:40
This was one example from the prior WG: https://www.wipo.int/amc/en/domains/search/text.jsp?case=D2012-1922
Kris Seeburn
01:39:56
that might give them a way out
Berry Cobb
01:39:57
and here. https://www.wipo.int/amc/en/domains/decisions/html/2002/d2002-0222.html
Terri Agnew
01:40:07
Next meeting: he IGO Work Track Team meeting is scheduled on Monday, 08 March 2021 at 16:00 UTC for 90 minutes.
Jeff Neuman
01:41:50
But it still doesn't sound like we agree on what the "issues" are.
Jeff Neuman
01:42:36
I thought the issues were (a) standing to enter UDRP and (b) right of registrant to appeal without forcing an IGO to give up or risk sovereign immunity
Kris Seeburn
01:43:06
I think we can work the Brian’s document and The Hague convention on arbitration it might just make igo happier
Jeff Neuman
01:43:24
@Kris - the job is not to make IGOs happy...
Jeff Neuman
01:43:29
its to resolve the issues
Jay Chapman
01:43:34
I appreciate the conclusion Chris - this does require more thought and assessment on a lot of matters before taking any action
Vanda Scartezini (alternate) ALAC
01:43:57
very relevant discussion - would be good to hear more about 6ter - Have a nice week and good pre ICANN meeting starting next Monday
Vanda Scartezini (alternate) ALAC
01:44:39
appreciate Sunsan Comments
Paul McGrady
01:44:51
never hurts to ask
Brian Beckham (WIPO)
01:45:11
thx Chris
Vanda Scartezini (alternate) ALAC
01:45:12
thank you all.
Paul McGrady
01:45:16
A great call today and fascinating discussion!