5 August 2015

The next meeting of the new IGO-INGO Access to Curative Rights Protection Mechanisms Working Group is scheduled on Wednesday 5 August 2015 at 16:00 UTC (09:00 PDT, 12:00 EDT, 17:00 London, 18:00 CET). 

Adobe Connect WITH AUDIO enabled: https://icann.adobeconnect.com/crp/ 

Proposed Agenda:

1. Roll call/updates to SOI
2. Finalize draft letter and questions for external legal expert (draft to follow)
3. Review shortlist of external expert candidates (list to follow)
4. Status update on Board, GAC and IGO interactions
5. Next steps/next meeting

Documents for Review:

Questions to Legal Expert on IGO Immunity - updated draft - 4 Aug 2015

MP3 Recording: http://audio.icann.org/gnso/gnso-igo-ingo-05aug15-en.mp3

Meeting Transcript: http://gnso.icann.org/en/meetings/transcript-igo-ingo-crp-access-05aug15-en.pdf

Attendees:

George Kirikos - Individual

Petter Rindforth – IPC

Phil Corwin – BC

Val Sherman - IPC

Jim Bikoff – IPC

Paul Tattersfield - Individual

Osvaldo Novoa - NCUC

Mason Cole – RySG

Lori Schulman – IPC

Rudi Vansnick – NPOC

Jay Chapman – Individual

Apologies:

Kathy Kleiman - NCUC

ICANN staff:

Mary Wong

Berry Cobb

Steve Chan

Julia Charvolen

Terri Agnew

Adobe Connect chat transcript for Wednesday, 05 August 2015:

   Terri Agnew:Dear all, welcome to the  IGO-INGO Curative Rights Protection PDP WG Meeting on the 5th August 2015

  George Kirikos:Hi everyone.

  Osvaldo Novoa:Hello all

  George Kirikos:Hi Osvaldo.

  George Kirikos:I noticed there's a typo in the document that's on screen -- it says "UCANN" on page 4 (just above the "3. Questions", in blue text)

  Mary Wong:Thanks, George - we'll fix in final formatting

  Terri Agnew:Welcome Paul Tattersfield

  Paul Tattersfield:Hello all

  Terri Agnew:Welcome Phil Corwin

  Philip Corwin:Hello all. I've been on call since start but had to look up Adobe link

  George Kirikos:Welcome, Phil.

  Philip Corwin:Echoing petter, thanks tyo all for being on call on short notice

  Terri Agnew:Welcome Rudi Vansnick

  Rudi Vansnick:sorry for being late

  George Kirikos:Welcome, Rudi.

  George Kirikos:Is there a possibility of having co-authors? (i.e. more than one expert) That's common in academic research.

  Mary Wong:@George, as this would be more solicitation of expert advice rather than a scholarly paper, I'd say let's go with one first.

  Rudi Vansnick:good question George although it could be a budget issue

  Terri Agnew:Welcome Lori Schulman

  Lori:Thanks.  My apologies for getting on late.  Lots of balls in the air today.

  Jay Chapman:and the domain name registrant’s rights to the registration and/or use of a domain name

  George Kirikos:Jay's language looks fine to me.

  Rudi Vansnick:good point Jay

  Mary Wong:Can we simplify it by saying something like "conflict between an IGO's and a registrant's rights"?

  Philip Corwin:I added the proposed blue language in Q1 that refers to registrant's rights -- but am agnostic on final language so long as it captures concept.

  Rudi Vansnick:the right to use is quite important

  Mary Wong:@Jay, @Phil, if we change the language, would we still need Phil's language in blue at the end of that sentence in Q1?

  George Kirikos:I think the key part of Question #1 is that it's the IGO that's initiating the dispute. So, they're trying to claim 'immunity', even though they are the "aggressor" so to speak. Whereas "immunity" is usually a defence to a claim.

  Lori:When I scroll the document is it scrolling for everyone or just me?

  Rudi Vansnick:@Lori : only  for you

  Lori:thanks.

  George Kirikos:I think we definitely need the language at the end of Q1, perhaps even more, to clarify that the IGO is the one initiating the dispute.

  Mary Wong:When documents are unsync'ed everyone can scroll without affecting anyone else's view

  Mary Wong:@George, note that the Q currently says "judicial action brought by a domain name registrant"

  Jay Chapman:Yes, i think the blue language Phil added is still necessary

  Rudi Vansnick:we can keep the text in blue

  Paul Tattersfield:and the domain name registrant's rights to registration or use of a domain?

  Philip Corwin:Q2 references a judicial appeal filed by a registrant who lost a UDRP or URS -- the only situation in which the sovereign immunity issue arises.

  George Kirikos:It's clear that if the UDRP didn't exist, IGOs would have to use the courts.

  George Kirikos:(and they wouldn't be able to assert immunity, when they themselves brought an action to the court)

  George Kirikos:So, to the extent that the UDRP doesn't create any "new law", implicitly the IGOs should still be subject to court action, even if they decided to initiate via the UDRP.

  Lori:I was thinking of Judd Kessler of Porter Wright Morris and Arthur

  Rudi Vansnick:one simple question : what about an expert from outside the USA ?

  Lori:I can ask him.

  Lori:Rudi's point is well taken too.

  Mary Wong:@Rudi, Dr Khoury is from Israeal and Prof Geist from Canada

  Rudi Vansnick:Dr Khoury is the only one if i'm correct ?

  Lori:http://www.porterwright.com/judd_kessler/

  Lori:Judd is an international arbitration judge

  Lori:Harvard educated, used to work for USAID

  Mary Wong:@Lori, when you contact Mr Kessler, please cc me and Steve so we can follow up if he's interested

  Lori:OK.

  Mary Wong:Thanks!

  George Kirikos:The experts need to also be familiar with rulings in many jurisdictions around the world, not just the USA.

  Lori:Judd is an international arbitrator  -- I will ask these questions

George Kirikos:(e.g. I had posted a Supreme Court of Canada decision) At least for G20 countries, or other advanced economies (i.e. where most IGOs and domain name registrants would be located)

  Lori:What have you been sending candidates since our doc is still under discussion or have you just been interviewing

  Mary Wong:@Lori, Steve has spoken to (or will speak to) all of them, explaining orally the scope of what we are looking for.

  Lori:Ok,  I will call Judd, explain and then tell him to expect communication from Steve?

  Mary Wong:@Lori, thank you, that sounds great

  George Kirikos:I found a book published in 2000 by Cambridge University Press at http://catdir.loc.gov/catdir/samples/cam032/99011072.pdf

  George Kirikos:which seems to cover the topic. The author might be able to update us, since the precedents might have changed in 15 years. (he appears to cover more than one country).

  Mary Wong:@George, would you like to propose that staff contact Prof Reinisch?

  Lori:I just contacted Judd privately  to see if there is any interest.  When I hear from him then maybe I will set up a call with Steve

  George Kirikos:Sure, or other researchers.

  Lori:Mary, if he expresses any interest, then I will cc you and Steve

Rudi Vansnick:i just agreed

  Mary Wong:Thanks Lori!

  George Kirikos:Of course, WIPO itself is an IGO. Their statement seems to just be a 'position statement', and not useful in the sense that it provides no underlying facts or supporting evidence.

  Lori:Brian and Jonathan from OECD were concerned that we were not focusing on their concerns enough

  Lori:that the group had been too dismissive on the whole

  George Kirikos:We've had dozens of volunteers spending hundreds of hours on 'their concerns', yet they've not shown up at these calls.

  Lori:I had pointed that out

  Mary Wong:Brian is an observer to this WG

  George Kirikos:Disagreeing with their analysis, and asking for facts (rather than position statements) shows we're bending over backwards to try to address their concerns.

  Mary Wong:@Lori, all those documents are part of this WG's record. We had Sub TEams that reviewed them all.

  Mary Wong:The review included the WIPO-2 Process report and associated documents, WIPO SCT proceedings, the earlier ICANN President's Joint Working Group, and the 2007 GNSO Issue Report.

  George Kirikos:Indeed, we've reached a conclusion that Article 6ter marks should be sufficient for standing under the existing UDRP.

  George Kirikos:And that further education would allow IGOs to move forward under the existing policy. So, their "wish list" is partially being addressed.

  George Kirikos:What's funny is that we've shown cases where IGOs do go to court.

  George Kirikos:(world bank, etc.)

  George Kirikos:When they speak in 'absolutes', instead of recognizing that reality is not 'absolute', it's like arguing religion.

  George Kirikos:e.g. they could have told us how they enforce non-domain trademark disputes.

  George Kirikos:Presumably they don't compel offenders into binding international arbitration....instead, they've been silent.

  George Kirikos:If they "tolerate" non-domain trademark infringement....it begs the question why they don't "tolerate" domain name related TM infringement?

  Rudi Vansnick:woops 30 days .. waw being a european i do not have these ;-)

  Rudi Vansnick:actually i'm happy with 3 -4 days of vacation ;-)

  George Kirikos:What's a vacation? :-)

  Paul Tattersfield:If the meeting can not take place soon it must call in to question the Dublin Deadline

  Philip Corwin:Exception noted Rudi ;-)

  Lori:I need to sign off.  Lunch with the esteemed Mr. Metalitz. 

  Lori:Ciao

  Rudi Vansnick:thanks a lot for the good work delivered

  George Kirikos:Bye everyone. Have a great day!

  Paul Tattersfield:thanks all

  Jay Chapman:goodbye all!

  Rudi Vansnick:bye