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051040040 IGO Work Track Team Meeting
John McElwaine
24:33
I need take this call, will be back in 5
Terri Agnew
26:23
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 Panelists and Attendees in order for everyone to see chat.
Berry Cobb
27:42
Link to communique: https://gac.icann.org/contentMigrated/icann71-gac-communique
Terri Agnew
28:49
**Members: reminder, when using chat, please select Panelists and Attendees in order for everyone to see chat.
Paul McGrady
29:20
Re-posting to All Panelists and Attendees: @All, please let me know if any of you want to join me in the effort
Mary Wong - ICANN Org
29:24
@Paul, hopefully the draft outline we circulated that Chris mentioned can be a helpful starting point.
Berry Cobb
29:56
Link to Goog sheet: https://docs.google.com/document/d/13gMZKUB0KEo1AP7pb5G_yWWsSRdFDDjgQO2RKEf9Bk8/edit
Paul McGrady
32:18
@Mary - a great start. I think I will just end up baking in a few lines about a right to a phone hearing, testing evidence, etc.
Paul McGrady
33:22
@Kavouss - 1. what is a "session" and 2. can you give an example of an entity that this would bring in that would have otherwise been excluded?
John McElwaine
35:10
I'm back
Terri Agnew
36:01
reminder, when using chat, please select Panelists and Attendees in order for everyone to see chat.
Berry Cobb
37:04
@Paul you're coming in faint and slightly broken.
Terri Agnew
37:28
@Paul, let me know if a dial out on the telephone e would be helpful.
Mary Wong - ICANN Org
38:36
I added alternative text in the blue square brackets to try to capture the gist of the scope Kavouss is highlighting, hopefully without overly broadening the concept.
BECKHAM Brian
38:58
As I understand, @Paul, if a hypothetical IGO "ABCDEFG" was admitted to the WIPO SCP for patent law discussions, they may have no reason to attend the General Assembly as that body deals with different subject matter.
Paul McGrady
39:38
Thanks Kavouss, but without examples of who those may be, the definition still is indefinite.
Jeff Neuman
40:17
If UDRP Panelists need to evaluate whether one qualifies as an IGO Complainant, it needs to be as objective and verifiable as it can be,
Jay Chapman
41:25
Is the list of “IGO”s - as defined by 1 a, b & c finite?
Mary Wong - ICANN Org
42:12
@Jay, it is intended to be (to the extent that any new IGOs that may be created fulfill this criteria).
BECKHAM Brian
42:53
(Mary has answered in the chat)
Paul McGrady
43:07
I missed the question while I was getting a dial out.
Jeff Neuman
43:18
I would like to ask that we just put a place holder / reservation that we may later want to consider URS and UDRP separately. It may not make a difference but we should make sure we tackle the UDRP separately from the URS. Remember that .com and .NET do not have the URS.
Chris Disspain
43:36
Jay asked in essence if IGOs were finite
Mary Wong - ICANN Org
46:57
It isn’t easy at all to create a new IGO; you do need at least two governments to agree to do so for a specific public purpose (as I think Brian is explaining.)
Paul McGrady
47:29
Likewise, there could also be (and most likely will be) a new brand owner formed next week. I don't think the UDRP ever intended to restrict the formation of new complainants.
Mary Wong - ICANN Org
50:20
To the best of the staff’s knowledge, there is no authoritative single global list of IGOs.
Jeff Neuman
50:39
I do not believe the highlighted text addresses my point.
Jeff Neuman
51:06
it does partially. But how does one verify the authenticity of a treaty or charter or governing document?
Paul McGrady
51:36
+1 Susan. If this is leading us back to lists, as Kavouss is suggesting, than we've lost the narrative if trying to avoid lists.
Chris Disspain
52:40
no lists
Jay Chapman
53:03
Good point, Jeff
Paul McGrady
55:03
Respectfully, I think Jeff doesn't give UDRP panelists enough credit. I'm sure they would be able to look over the Complainant's documentation and decide this point.
Jeff Neuman
55:06
@Susan - thanks for that. I have been previously asked questions as a panelist. But I can back off if that is the preference of the group.
Susan Anthony, USPTO
56:57
I do think you should continue to ask the hard questions. I take no offense in the question. I'm just not doing a sufficient job in allaying your concerns and, if I cannot convince you, then I may have challenges elsewhere.
Mary Wong - ICANN Org
57:18
@Juan Manuel, the proposal is to move away from specific lists (which need regular maintenance and verification, and which may be incomplete) and to use a definition that captures the essential requirements to be an IGO as that term is understood in government circles.
Mary Wong - ICANN Org
58:16
For information about how a non-member state or international organization obtains permanent observer status at the UN: https://ask.un.org/faq/14519
Mary Wong - ICANN Org
59:38
The UN also regularly publishes an updated list of those that currently have permanent observer status: https://undocs.org/A/INF/75/3
BECKHAM Brian
01:01:00
As to Jeff's question, the UDRP states (a) "your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights" and the Rules state: (b) "Specify the trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services, if any, with which the mark is used"
Mary Wong - ICANN Org
01:02:29
Option A is largely based on the Nominet appeal process
Mary Wong - ICANN Org
01:02:53
Option B is, in turn, largely based on the WIPO Secretariat paper that we circulated.
BECKHAM Brian
01:04:44
Just a small drafting comment, for both A and B, instead of "who" (at: "...and the relevant registrar, who shall stay the implementation of...") might we say "...and the relevant registrar; the registrar shall..."
Paul McGrady
01:05:53
@Jay - so 2 bites at the arbitration apple? Why would a losing respondent agree to arbitration in the first instance?
Paul McGrady
01:07:30
So the IGO gets to pay twice? One in defending a court case and then prosecuting an arbitration? Why would the IGO agree to that?
BECKHAM Brian
01:07:45
@Paul, hadn't we agreed that if a registrant chooses to go to court and the court find it does not have jurisdiction, then the original decision is implemented (stemming from correcting Rec 5)?
Paul McGrady
01:09:39
If the registrant goes to court and the court dismisses the case, the UDRP decision would be implemented, so why would the IGO then agree to binding arbitration? It already won...
BECKHAM Brian
01:12:14
(agreed)
BECKHAM Brian
01:16:57
I think UNCITRAL came up earlier (WIPO also has Arbitration rules)
BECKHAM Brian
01:17:30
(no comments)
Paul McGrady
01:17:38
I think picking the actual arbitration service provider is implementation and we should punt on that decision.
Paul McGrady
01:17:59
Will there be an IRT for this work?
Mary Wong - ICANN Org
01:18:54
@Paul, that’s why we limited this bullet to the arbitral rules to be used rather than a specific provider.
BECKHAM Brian
01:19:44
refused to agree to arbitration, or refused to accept the determination?
Paul McGrady
01:21:18
+1 Brian. That makes sense.
BECKHAM Brian
01:24:51
we should probably specify 1 or 3 at sub 2
Jeff Neuman
01:25:08
I know this is a detail....but if the name expires during the pendency of the arbitration, the Complainant should have the option to renew.
Paul McGrady
01:27:20
I think the policy is "who shall not have a conflict of interest." The IRT can get into "identical" and "related" etc.
Paul McGrady
01:31:14
+1 Mary
Mary Wong - ICANN Org
01:33:27
If it helps, the policy group can also specify implementation guidance (to accompany the policy principles being recommended.)
Paul McGrady
01:34:47
Wouldn't it be the same for arbitration as it would be for a court? The arbitration complaint would be based on legal claims found in law, not the UDRP.
Paul McGrady
01:35:45
@Brian - but that would just be a farmed out super panel.
Terri Agnew
01:35:57
done
Paul McGrady
01:36:54
+1 Chris As a losing respondent, I would never agree to arbitration where fair use and free speech case law doesn't follow me.
Jay Chapman
01:37:08
Good example
Jeff Neuman
01:40:50
Losing Registrants use the Court in the US according to this language in Section 1114 which states: "A domain name registrant whose domain name has been suspended, disabled, or transferred under a policy described under clause (ii)(II) may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter. The court may grant injunctive relief to the domain name registrant, including the reactivation of the domain name or transfer of the domain name to the domain name registrant."
Jeff Neuman
01:41:06
"is not unlawful" is a difference standard than what is in the UDRP
BECKHAM Brian
01:41:25
@Jeff that is a US-centric approach
Jeff Neuman
01:41:46
@Brian - That is how I started my comment "in the US court"
Jay Chapman
01:46:11
Agree with Paul on this point
BECKHAM Brian
01:47:26
I think this merits further discussion
Terri Agnew
01:48:03
Next call: The IGO Work Track Team meeting is scheduled on Monday, 28 June 2021 at 15:00 UTC for 90 minutes
Paul McGrady
01:48:12
Agree, this merits further discussion. Let's have some offline discussions as well to see if we can find that middle ground.
Berry Cobb
01:48:43
5 Weeks to Deadline. ;-)
BECKHAM Brian
01:48:59
thx again Chris, all