051040040 IGO Work Track Team Meeting
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my apologies for being late, had a Zoom app updated.
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
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 - 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)
sorry will dial in
Brian has joined via telephone
But Paul said he didn't want to see a parallel process
We need to have a specific ask of Council. Not just "Can we look at other things?"
There is a discussion this week on it
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.
@Paul - I believe that is actually further outside of the scope.
Because you would be materially changing the standard and criteria
to something completely new
@Jeff - how so? That concept is definitely contained in the bad faith factors explicitly found in the UDRP.
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
@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.
There is no jurisprudence using the standard you just gave
Paul - only IGOs are subject to the IGODRP as contained in the redlines
AND we wouldn't be narrowing anything
@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.
There is LOTS of jurisprudence on what constitutes Bad Faith under the UDRP
So, if we keep the BAD FAITH elements, we have 23 years of cases defining what constitutes the registration AND use in bad faith
@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.
For the "Use" element, perhaps. But what about the "registration in bad faith element".
"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
@Jeff - the registration in bad faith is dependent on pre-existing trademark rights that the respondent could have known about.
@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?
Its more than the respondent "could" have known about it. Its about actual knowledge (or constructive knowledge plus other factors)
good point Paul… :-)
constructive knowledge is not enough
Perhaps Jeff, but I think that supports my position that ICANN should not be using 6ter and/or GAC lists to create trademarkish rights.
And, I don't think it has any bearing on my proposed narrowing of the bad faith use prong.
Agree with Brian. The more narrow we make this, the less heartburn over due process issues.
Consent to arbitration is an interesting idea. Thanks Brian.
I like "alternative clauses" better than "parallel process"
That was just a Place holder in the draft....had to say something there :)
6ter is not great. GAC lists are worse. Time for our thinking caps.
Brian Beckham (WIPO)
Completely understood. (And agree with Paul.)