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051040040 IGO Work Track Team Meeting
Terri Agnew
25:36
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. Alternates not replacing members 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.
Terri Agnew
25:47
@Paul, this is noted.
Berry Cobb
26:43
Here's a link to the Council's transcript of the 20 May call. Page 51 starts the update on IGO WT: https://gnso.icann.org/sites/default/files/policy/2021/transcript/transcript-gnso-council-20may21-en.pdf
Terri Agnew
30:06
Confirm next meeting is scheduled: IGO Work Track Team meeting is scheduled on Monday, 07 June 2021 at 15:00 UTC for 90 minutes.
Alexandra Excoffier (OECD)
30:39
Here too it's a holiday today
Brian Beckham (WIPO)
38:28
Right but Jeff the IGO would not be raising that objection
Brian Beckham (WIPO)
40:50
I’m not sure I follow Jeff
Brian Beckham (WIPO)
41:04
It stems from the application of the UDRP
Brian Beckham (WIPO)
41:30
it has nothing to do with potential arbitration between the Rr and RNH
Paul McGrady
41:56
I'm reposting as I accidently left out attendees: Wouldn't the registrant consent through registration (if the arbitration is baked into the UDRP)? Then, the only consent issue is the whether or not the IGO consents?
Paul McGrady
42:17
@Jeff - why does it work for the UDRP and not arbitration?
Paul McGrady
46:58
I agree. I'd like to keep going while we track this down.
Jeff Neuman (GNSO Liaison to GAC)
47:34
I have no issue with moving forward to talk about arbitration.
Jeff Neuman (GNSO Liaison to GAC)
48:05
As I stated, I am not opposed conceptually to it. I just cant see how we can compel it....but that is why I asked for a legal opinion from specialists.
Paul McGrady
49:39
Can we explore shifting the timeline for the consent, e.g. if the losing registrant does not consent to arbitration after a short deadline, the domain name is transferred and the registrant has to try to get it back. If the losing registrant agrees to binding arbitration within the short deadline, the losing registrant keeps the domain name until the arbitrator rules.
Jeff Neuman (GNSO Liaison to GAC)
51:15
So, you are saying that if a Registrant within 10 days wants to go to court and not to arbitration, then the name will be transferred regardless?
Paul McGrady
51:49
@Jeff - could be less than 10 days and would only apply in cases where IGO is on the other side.
Jeff Neuman (GNSO Liaison to GAC)
52:27
Why would a registrant want to agree to that? And why are we treating IGOs as a preferred class of UDRP Complainants?
Alexandra Excoffier (OECD)
53:38
We wouldn't. 10 days is a stay in any case, court or arbitration
Paul McGrady
55:01
If a case is dismissed without prejudice, then the domain name would be transferred, which is why a registrant would agree to arbitration.
Paul McGrady
55:43
Arbitration is "live to fight another day."
Brian Beckham (WIPO)
56:44
We are talking about two different court paths
Brian Beckham (WIPO)
57:23
One is within 10 days of a UDRP to stay implementation; the other is operative irrespective of the UDRP process
Alexandra Excoffier (OECD)
57:30
why not give registrant a choice
Alexandra Excoffier (OECD)
57:39
instead of requiring them to go to court
Paul McGrady
01:00:39
Agree Alexandra. The registrant will have a choice.
Alexandra Excoffier (OECD)
01:01:05
I fully agree with Paul's logic
Paul McGrady
01:02:51
Could we pick an established arbitration service as a strawman process?
Brian Beckham (WIPO)
01:05:10
But Jeff in the IGO context IGOs are not able to submit to court jurisdiction
Alexandra Excoffier (OECD)
01:05:49
Arbitration is legal recourse
Paul McGrady
01:06:45
@Jeff - but now you are creating a special class of registrants. I'm OK with that, but we have to be consistent since you were worried about creating a special class of complainant.
Jeff Neuman (GNSO Liaison to GAC)
01:07:08
No, I am not.
Jeff Neuman (GNSO Liaison to GAC)
01:07:26
You have created the special class of complainants by eliminating the mutual jurisdiction clause
Jeff Neuman (GNSO Liaison to GAC)
01:08:03
which is fine.....but then you have to try to also accommodate Registrants as well.
Brian Beckham (WIPO)
01:09:05
But Jay that *is* the fundamental issue that we have been tasked to address.
Brian Beckham (WIPO)
01:09:44
And as has been stated numerous times, the idea of an agent has been discussed amongst IGOs and is not an an acceptable “solution”
Alexandra Excoffier (OECD)
01:09:57
@Jay, if we transfer our right to an agent, they will still have immunities
Jeff Neuman (GNSO Liaison to GAC)
01:10:38
I agree Brian...we are trying to address the mutual jurisdiction consent issue. But why do we then need to also make it additionally harder for registrants (eg., you have a choice....either court or arbitration).
Paul McGrady
01:10:41
@Jay - agent stepping into the shoes is a fairly foreign concept in the trademark law context. Not saying it couldn't be done, but it is not a natural fit. Happy to keep talking about it.
Jeff Neuman (GNSO Liaison to GAC)
01:12:06
Arbitrations have become more expensive these days than court action... :)
Brian Beckham (WIPO)
01:12:12
Agree Susan, that was what the chart I shared last call was supposed to unpack a bit
Mary Wong
01:13:21
Just a note that the procedural mechanism regarding the use of agents or licensees was a point that the IGOs and other commenters provided feedback on during the original PDP’s Public Comment period on its Initial Report.
Jeff Neuman
01:14:08
@Mary - Was this concept included in the legal opinion?
Mary Wong
01:15:12
@Jeff, we’ll need to check. I think it was, at least briefly.
Paul McGrady
01:15:46
Thanks Brian. It would be good to have those older comments brought forward.
Mary Wong
01:16:31
Staff can provide a summary if it will help move things forward.
Paul McGrady
01:16:40
They would be useful to Jay & Company if there is going to be a proposal on how the Agency Solution would work.
Paul McGrady
01:18:19
I'm dropping now.
Brian Beckham (WIPO)
01:18:56
IGOs very closely all of followed the prior WG
Jeff Neuman
01:20:01
Jay never loses :)
Mary Wong
01:22:59
@Jeff, confirming that the PDP expert (Professor Edward Swaine, GWU) did address the question of the potential risks to immunity in a situation where an IGO assigns the right to use its name (mark) to another party to enable that other party to file as the complainant.
Alexandra Excoffier (OECD)
01:25:38
@Jay: But why not give registrant choice not to go to court and arbitrate instead?
Jeff Neuman
01:31:37
@Alexandra - I understand your reluctance. But you are telling the Registrants 2 things. First, you must get rid of the consent to mutual jurisdiction clause. Second, you need to restructure the way you do things.
Alexandra Excoffier (OECD)
01:35:22
IGOs are unable to consent to jurisdiction by participating in a UDRP, so if that clause remains, we have no possible solution
Jeff Neuman
01:37:02
Understood Alexandra completely. But you have to accommodate a little, right. If that clause goes away, then perhaps the view against just 1 proceeding could ease a little.
Jeff Neuman
01:38:09
In other words, to accommodate IGOs, we get rid of the consent issue. But now we try to figure out how to balance and accommodate Registrants.
Jeff Neuman
01:38:32
Perhaps that is in the arbitration itself...but lets not close the door
Alexandra Excoffier (OECD)
01:39:00
@Jeff, but that is why it is called an alternative dispute resolution procedure, alternative to court litigation
Jeff Neuman
01:39:48
Well there are different forms of ADR. You have mediation, arbitration, etc.
Jeff Neuman
01:40:07
Not all of them foreclose court options
Mary Wong
01:40:09
FYI Nominet’s legal counsel met with the original PDP working group to describe Nominet’s process.
Brian Beckham (WIPO)
01:40:45
Can never go wrong with garlic!
Jeff Neuman
01:41:08
I believe Nominet's procedures do not rule out court action, right?
Alexandra Excoffier (OECD)
01:41:16
@Jeff, so you are proposing arbitration and then court?
Jeff Neuman
01:41:26
Its good and effective....but there is always a backstop.
Jeff Neuman
01:41:52
@Alexandra, I am not proposing anything other than not taking it off the table yet.
Jay Chapman
01:42:20
10-4 Chris