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051040040 IGO Work Track Team Meeting
Terri Agnew
27:29
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Terri Agnew
34:16
Reminder, when using chat, please select all panelists and attendees in order for everyone to see chat
Ioana Stupariu
34:17
my apologies for being late, had a Zoom app updated.
Terri Agnew
34:24
Welcome Ioana.
Jeff Neuman
37:18
FYI, I know we are not talking about the redline, but I tried to address the "rights issue" in that redline, but not referring to having "rights", but just that the name matches one that is on the "list" whatever we use as that list
Paul McGrady
39:14
I worry about not only the legal ramifications to registrants, but also the optics of ICANN appearing to want to strip registrants of rights they otherwise have at law.
Paul McGrady
51:21
WhoFan.com
Jeff Neuman
56:27
@Paul - but your last proposal of an immediate transfer of the name pending a challenge by the Registrant would have MUCH more of an impact on Registrant rights than this would. In fact, if that proposal were adopted, then an IN REM action would be impossible since possession of the property would have left the hands of the registrant
Brian Beckham (WIPO)
56:30
sorry will dial in
Terri Agnew
57:16
Brian has joined via telephone
Jeff Neuman
59:08
But Paul said he didn't want to see a parallel process
Jeff Neuman
01:00:25
We need to have a specific ask of Council. Not just "Can we look at other things?"
Jeff Neuman
01:00:38
There is a discussion this week on it
Paul McGrady
01:04:59
Agree with what I think Brian is saying. If we limited these changes/waivers to cases where a panelist finds that a registrant is "blatantly misrepresenting themselves to be the Complainant" it would give more freedom to be flexible.
Jeff Neuman
01:07:34
@Paul - I believe that is actually further outside of the scope.
Jeff Neuman
01:07:49
Because you would be materially changing the standard and criteria
Jeff Neuman
01:07:54
to something completely new
Paul McGrady
01:08:12
@Jeff - how so? That concept is definitely contained in the bad faith factors explicitly found in the UDRP.
Jeff Neuman
01:08:58
First of all, you have eliminated the "Registration in Bad Faith". Remember there are 2 parts. It must be Registered AND Used in bad faith
Paul McGrady
01:09:10
@Jeff - you would only be limiting the triggering function for the proposed tweaks to the UDRP for IGO purposes. Again, far more narrow than having every kind of case trigger the IGO tweaks.
Jeff Neuman
01:09:18
There is no jurisprudence using the standard you just gave
Jeff Neuman
01:10:39
Paul - only IGOs are subject to the IGODRP as contained in the redlines
Jeff Neuman
01:10:44
AND we wouldn't be narrowing anything
Paul McGrady
01:10:55
@Jeff - and there is no jurisprudence for any of the other tweaks we are considering. So, I'm not sure I am following your point. We need UDRP cases in advance for tweaks we haven't created yet? Seems a high bar and if applied to all proposed tweaks would end the conversation righgt now.
Jeff Neuman
01:12:28
There is LOTS of jurisprudence on what constitutes Bad Faith under the UDRP
Jeff Neuman
01:13:12
So, if we keep the BAD FAITH elements, we have 23 years of cases defining what constitutes the registration AND use in bad faith
Paul McGrady
01:14:42
@Jeff correct and no doubt registering a domain name to " "blatantly misrepresenting themselves to be the Complainant" falls easily within those cases and the policy.
Jeff Neuman
01:16:26
For the "Use" element, perhaps. But what about the "registration in bad faith element".
Paul McGrady
01:16:48
"The Panel finds that this is the most plausible intended use for Respondent’s blatant imitation, not only of Complainant’s trademark, but also of its commercial website by the addition of the TLD “.com.co”. https://www.wipo.int/amc/en/domains/search/text.jsp?case=DCO2020-0052
Paul McGrady
01:17:52
@Jeff - the registration in bad faith is dependent on pre-existing trademark rights that the respondent could have known about.
Paul McGrady
01:20:47
@Chris - how cant hat arbitrator possibly have all the same claims and defense every piece of cybersquatting legislation and every Rules of Procedure and Evidence everywhere in the world?
Paul McGrady
01:20:56
can the
Jeff Neuman
01:21:11
Its more than the respondent "could" have known about it. Its about actual knowledge (or constructive knowledge plus other factors)
Chris Disspain
01:21:19
good point Paul… :-)
Jeff Neuman
01:21:22
constructive knowledge is not enough
Paul McGrady
01:22:23
Perhaps Jeff, but I think that supports my position that ICANN should not be using 6ter and/or GAC lists to create trademarkish rights.
Paul McGrady
01:22:47
And, I don't think it has any bearing on my proposed narrowing of the bad faith use prong.
Paul McGrady
01:27:56
Agree with Brian. The more narrow we make this, the less heartburn over due process issues.
Paul McGrady
01:29:24
Consent to arbitration is an interesting idea. Thanks Brian.
Berry Cobb
01:33:39
https://docs.google.com/document/d/1uHi31ChcJxZ-n0e7zJrW8q251er3VESTEYa92RlgiZc/edit
Paul McGrady
01:33:43
I like "alternative clauses" better than "parallel process"
Berry Cobb
01:33:46
https://docs.google.com/document/d/1M3rXhS272tqBW1cIWY5tN-FMHsE5PBkY4CeR-hBMWKs/edit
Jeff Neuman
01:41:21
That was just a Place holder in the draft....had to say something there :)
Paul McGrady
01:42:23
6ter is not great. GAC lists are worse. Time for our thinking caps.
Brian Beckham (WIPO)
01:43:19
Completely understood. (And agree with Paul.)
Paul McGrady
01:43:38
Thanks Chris!
David Satola
01:43:44
Thanks