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051040040 IGO Work Track Team Meeting
Terri Agnew
26:40
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. Alternates are not allowed to engage in the chat (apart from private chats) or use any of the other zoom room functionalities such as raising hands or agreeing / disagreeing.
zzzVanda Scartezini - Alternate ALAC
38:00
thank you Berry quite clear
Brian Beckham (WIPO)
43:57
I think @Paul that was meant to be illustrative, not exclusive.
Paul McGrady
45:49
@Brian, the broader we make this, the more difficult it is to get on board. There seems to be a serious suggestion that the GAC can just manufacture trademark rights for IGOs. That is a huge sea change (on top of the already huge sea change already made on the "might have standing based on 6ter" that the last WG came up with.
Paul McGrady
46:37
None of these are tweaks.
Jeff Neuman (GNSO Liaison to the GAC)
49:03
@Brian - Wouldn't it be a positive step to resolve the Jurisdictional Immunity Question and give standing to the IGOs?
Jeff Neuman (GNSO Liaison to the GAC)
49:39
Why can't we make incremental progress as opposed to doing everything at once.
Paul McGrady
50:40
Who will pay for the arbitration? Will the losing Respondent pay? If not, how will arbitration not just become a nuisance mechanism for losing squatters?
Jeff Neuman (GNSO Liaison to the GAC)
51:21
@Paul - you mean for "losing registrants"?
Jeff Neuman (GNSO Liaison to the GAC)
52:17
Calling everyone that loses a UDRP a "squatter" is not really fair.
Mary Wong
52:25
@Kavouss, thank you - all, the GAC’s ICANN70 Communique did not contain new advice but referred to previous advice, including Johannesburg and Panama, the former of which was clear about a separate process.
Paul McGrady
52:56
@Jeff - by that point, a panelist will have called them a squatter, not me. So, it is fair until the arbitrator says the panelist was wrong.
Jeff Neuman (GNSO Liaison to the GAC)
53:45
@Paul - Panelists do not call losing registrants "squatters". At least not in the cases I have read.
Jeff Neuman (GNSO Liaison to the GAC)
55:08
There have been several court cases that have produced different results than a UDRP despite the Panelist finding registration and use in bad faith
Mary Wong
56:14
GAC advice (Johannesburg Communique) is that a dispute resolution mechanism should: I. be modeled on, but separate from, the existing Uniform Dispute Resolution Policy (UDRP)II. provide standing based on IGOs’ status as public intergovernmental institutions, andIII. respect IGOs’ jurisdictional status by facilitating appeals exclusively through arbitration.
Paul McGrady
57:24
"Thus, the Panel finds that Respondent is a cybersquatter, i.e., an entity that registers large numbers of domain names in hopes that it will reap significant profit when it resells them to parties with legitimate interests, in this case trademark interests, in the names. This violates the Policy at 4(b)(i)." https://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-1626.html
Paul McGrady
58:14
The above was for @Jeff.
Alexandra Excoffier (OECD)
58:24
legal protections, not trademark rights
Jeff Neuman (GNSO Liaison to the GAC)
59:32
@Paul - lol. I knew you would find a case where a Panelist did :) Let me rephrase that I do not think it is appropriate for Panelists to apply labels like that.
Paul McGrady
01:00:59
@Jeff - perhaps not, but now we have moved into the realm of philosophy. :)
Jeff Neuman (GNSO Liaison to the GAC)
01:01:35
@Paul - much of this topic is philosophical :)
Jeff Neuman (GNSO Liaison to the GAC)
01:07:49
I am trying to take a pragmatic approach. Lets solve the clearly identified issues (a) standing; (b) no waiver of jurisdictional immunity and (c) a process by which a losing registrant can be heard. If we do that, then what are we not doing?
Paul McGrady
01:12:21
@Chris, is there a third option where we go back for scope because we are willing to have that discussion? Some of us are just not going to be comfortable stepping out of scope of our own accord.
Paul McGrady
01:13:22
In other words, some of are open to have that discussion, but wants the Council's blessing to have it.
Chris Disspain
01:14:07
Paul…Can you bring that up verbally…Hard to deal with it nd get clarity in the chat
Jay Chapman
01:18:03
I tend to fall alongside Jeff’s pragmatic approach. There is enough work - a LOT of work - to do within the context of the specific instructions from GNSO.
Brian Beckham (WIPO)
01:20:44
But, @Jeff, done *within* the UDRP, I worry about unintended consequences
Jeff Neuman (GNSO Liaison to the GAC)
01:23:46
@Brian - Its easy to say something could have "unintended consequences". But the same thing could be said for registrants as well.
Jeff Neuman (GNSO Liaison to the GAC)
01:24:02
We have a responsibility to look out for all parties.
Paul McGrady
01:24:06
Jeff raises an important issue. If it is a separate process, it would only apply on a go forward registration basis. Current registrants will have agreed to the UDRP but not to the IGOdrp.
Jeff Neuman (GNSO Liaison to the GAC)
01:25:49
If we amend the UDRP current registrants are not necessarily stuck with the amendments
Brian Beckham (WIPO)
01:26:02
I am not sure that is right @Paul if the output would be a Consensus Policy
John McElwaine
01:26:10
The new IGOdrp would be not be retroactively effective?
Jeff Neuman (GNSO Liaison to the GAC)
01:26:25
Registrants have not agreed to be bound by Consensus Policies.
Mary Wong
01:26:27
Yes, basically it can apply only to those registrants who agree to it (whether as part of a new registration or renewals).
Jeff Neuman (GNSO Liaison to the GAC)
01:26:36
Only Registries and Registrars are bound by it
Brian Beckham (WIPO)
01:28:50
I think RAA 3.8 and 2.12.2 speaks to that @Jeff
Brian Beckham (WIPO)
01:30:04
(sorry 3.12.2)
Jeff Neuman (GNSO Liaison to the GAC)
01:32:42
Yes, Registrars have to agree to put stuff in their agreements, but it is all still governed by contract law. In other words, even if there was a Consensus Policy that said that Registrants whose first names begin with the letter J cannot own domains, that does not mean that registrars can enforce that on existing registrants whose names begin with the letter J.
Jeff Neuman (GNSO Liaison to the GAC)
01:32:52
They may be able to do it upon the renewal of those names.
Jeff Neuman (GNSO Liaison to the GAC)
01:33:26
But contracts cannot retroactively change existing rights or benefits that easily
Paul McGrady
01:35:06
I agree with Chris. I think we need Council blessing on scope creep if we are going to scope creep. If we get that permission, I'm open to discussing just about anything, but I want the multistakeholder process to maintain its integrity.
Paul McGrady
01:37:38
Careful, not "mark contained" we could call it a "designation" or "entity name" perhaps. But we can't accidently create trademark rights.
Jeff Neuman (GNSO Liaison to the GAC)
01:41:43
If that's all that is meant by a "parallel process", without any other changes, then that is easy to go back to the GNSO with that as it would be "consistent".
Paul McGrady
01:42:28
Why not ask Council? It doesn't mean we have to agree to agree to a parallel process.
Jeff Neuman (GNSO Liaison to the GAC)
01:45:17
I understood "parallel process" to mean changing criteria and other aspects. If it is just copying the UDRP and calling it the IGODRP, but changing (a)Clause 4(a)(I) to allow IGOs to file, and (b) changing Rule 3(b)(xii) to not force IGO complainants to consent to Mutual Jurisdiction, and (c) allowing arbitration where a losing Registrant cannot get jurisdiction over an IGO in a court......then I am ok
Brian Beckham (WIPO)
01:46:40
Thx @Jeff, useful clarification
Jeff Neuman (GNSO Liaison to the GAC)
01:48:39
And we make it clear that existing jurisprudence for the same elements in both processes should continue to be used.
Jeff Neuman (GNSO Liaison to the GAC)
01:49:13
In other words registration and use in bad faith under the UDRP is the same as registration and use in bad faith under the IGODRP are the same
Paul McGrady
01:49:19
Thanks Chris. A good call.
zzzVanda Scartezini - Alternate ALAC
01:49:20
thank you all for several points of view!!
Terri Agnew
01:49:36
Next meeting: GO Work Track Team meeting is scheduled on Monday, 19 April 2021 at 15:00 UTC for 90 minutes.
Terri Agnew
01:49:42
**IGO
Brian Beckham (WIPO)
01:50:36
fair enough, but just wanted to ask
Jeff Neuman (GNSO Liaison to the GAC)
01:50:41
you mean the UDRP review? I would amend that charter to include the same elements of the IGODRP