Important ICANN Comment Period to protect domain name legal rights to due process

[GeorgeK]

Hi folks,

There's an important ICANN comment period on a working group's initial report that ends on Wednesday March 1st at 23:59 UTC time (6:59 pm NYC time), i.e. 2 days from now:

https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20-en
https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf

The existing comments are at:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/

My own submission is at:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/msg00004.html

and one can submit comments by email using: [email protected] (ICANN will followup with an email, usually within an hour, containing a link to validate/confirm your submission, as an anti-spam measure; click the link so that your comments appear in the archives with everyone else's, and check the above comments archive to verify that it does appear; the comments archive only updates around once per hour, though, so don't worry if it doesn't show up immediately; check back an hour later).

The working group is especially seeking comments on how to deal with the situation where an IGO wins the UDRP, the domain owner appeals in court, but then the IGO successfully asserts immunity at the court level to block the appeal from proceeding any further. My position (along with the majority of the PDP) is that the UDRP decision should be set aside or vitiated, thereby preserving the legal rights of all parties (as if the UDRP hadn't existed). The alternative is to compel binding arbitration before another UDRP-like panel, thereby eliminating the domain name owner's recourse to its national courts. I explain my position in detail at the beginning of my comment submission.
While the working group's report is 100 pages, the latter half mostly consists of an external legal report prepared by a professor. While I would encourage people to read the entire document, one can read the summary and the recommendations to get the gist of what's going on. Or, read the comments of others to get a sense of what is at stake.

Essentially, IGOs (intergovernmental organizations, like the World Bank, UN, NATO, etc.) want to eliminate the ability for domain owners to use the courts to defend their domain name, and instead make binding arbitration compulsory. They particularly covet domain names matching their acronyms. You can see the kinds of names they want in the list of reserved names they got ICANN to blacklist in new gTLDs:

https://www.icann.org/sites/default/files/packages/reserved-names/ReservedNames.xml (bottom half of the list is for IGOs)

The IGOs created their own set of recommendations via their own private "small group", instead of working with the open and transparent multistakeholder PDP process which would threaten domain name owners' legal rights to due process. Those recommendations are compared with the PDP's recommendations in the document.

While it's best to submit your own original thoughts in your own words, it's certainly acceptable to endorse the views of others who made comments (that's what NATO did, for example). While my comments are so far the only ones representative of the interests of domain name registrants, it's my hope that the ICA and others will also submit comments before the deadline.

You can check out the working group's mailing list at:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/

and the Wiki at:

https://community.icann.org/display...urative+Rights+Protection+Mechanisms+PDP+Home


for more background material.

This might be your last chance for input on this topic (which has been going on for more than 2 years now). Should IGOs remove the right of domain owners to seek recourse through their national courts, it would be a slippery slope. IGOs are the creation of governments, and they would likely try to continue to erode domain owners rights to due process by targeting geo-names (e.g. City of Paris with Parvi.org) for cases that could not be appealed to national courts. Indeed, TM owners might even try to do the same thing for the UDRP, turning it into its own kangaroo court that can't be appealed to a real court. Thus, it's important to take a stand to defend rights to due process.

 

[GeorgeK]

The comment period just got extended. The new deadline is now March 30, 2017 23:59 UTC (i.e. best to get in comments by the afternoon NYC time). That gives us all more time to polish our submissions, and do more outreach to domain name registrants whose rights are being threatened.

In other news, the Paris Court of Appeal handed victory to a domain name owner who appealed an adverse UDRP ruling at WIPO, see:

http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a5-7233a147b62c

The Moobitalk.com UDRP decision which was overturned can be seen at:

http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2013-0835

This demonstrates why it's so important to defend our right to appeal to real courts, rather than the UDRP kangaroo courts at WIPO/NAF, etc. where panelists are a poor facsimile of real judges and real due process.

 

[GeorgeK]

I was able to find the full text (in French) of the Moobitalk court decision, for those that might be interested:

https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-ch-1-arret-du-8-novembre-2016/

These court cases explain why IGOs (and other complainants) want to restrict the rights of domain name owners to go to court. They want to engage in "forum shopping" and know that UDRP panelists are very pro-complainant, unlike a real court where there is a more level playing field with true due process.