Dear all,

Just as an update we had our introductory meeting today. So that I don’t lose the essence of my thoughts, I will not be taking a long detour but get to the point.

The WT is bogged down to finding a curative way to make things work. In this option and narrowed down focus, it is my view that we should as much as possible and I say “as much as possible” work to building a working paths for the community at large. I personally believe that we can work together with GAC and others reps from WIPO, OECD, WIPO etc., to ensure our community benefits to the best of interest that we are not taken on a ride to malware, hacking and others using legitimate agencies to usurp that and no one else gets entangled in the mess I saw and there has been around the world people posing as those who may have vaccination solutions to covid etc.,

Now the masterpiece meal is that we cannot mess with these four main but there is point 5 that is on the table towards curative rights. Which is what this WT stands to work on. My personal take as a non practicing lawyer but with enough seen issues of usurping the good guys against the bad guys without too much changing the way GNSO has locked it and said we cannot change these but as a lawyer with a background on these issues in particular like Intellectual property , trademarks etc., which I’ve seen in The Hague is the solution is being creative enough to fork out the GNSO to balance that of GAC which in this case goes in the interest of our community as well. As lawyers say the devil is in the words and if we wordsmith the proposal to make them work for all without hampering the GNSO position and that of the GAC we will need to be creative in words and making things fork out towards the IGOs such that we are also protected. I think we can and we do need to be in agreement as usual with everything. But I proposed we look revisit and creatively put in a solution that protects all parties interest. The solution to me as at now ic how we craft the curative solution to address point 5 in the previous decision of GNSO to the board about its standing. But not everyone is a lawyer and those who are knows how to word documents to get out of a deadlock.

Now what we are asked to do is fixated on these:

In April 2019, the GNSO Council approved four out of the five Policy Development Process (PDP) recommendations from the IGO-INGO Access to Curative Rights PDP Working Group, but specifically did not approve the fifth PDP recommendation1. Instead, the Council decided to amend the Charter of the Review of All Rights Protection Mechanisms (RPM) PDP Working Group, to seek to determine “whether an appropriate policy solution can be developed that is generally consistent with Recommendations 1, 2, 3 & 4 of the [Curative Rights] PDP Final Report and:
a. accounts for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances;
b. does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;
c. preserves registrants' rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy] (UDRP) or [Uniform Rapid Suspension] (URS) decision; and
d. recognizes that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction.”


But a highlight has been made on these points:

Collectively, the GNSO Council’s instructions, the effect of the four GNSO Council-approved PDP recommendations and the Council’s concerns as noted in the Addendum mean that the Work Track’s task must be conducted within the following boundaries:
1. The Work Track cannot recommend the creation of any specific new dispute resolution procedures (see Curative Rights PDP Recommendation #1b).
2. While substantive modifications to the UDRP and/or URS are not prohibited (Recommendation #1a), an IGO filing a complaint under either the UDRP or URS must nevertheless still demonstrate that it has a trademark or similar substantive legal right (Recommendation #2, which seeks to allow an IGO with unregistered trademark rights to fulfill the UDRP/URS standing requirement by relying on its compliance with Article 6ter of the Paris Convention for the Protection of Industrial Property).
3. The Work Track’s recommendation(s) must not affect or limit a registrant’s right to file suit in a court of competent jurisdiction (including but not limited to the ability to request that the court review the outcome of a UDRP/URS panel decision).
4. The Work Track’s recommendation(s) cannot supplant the role of a court in determining the question of an IGO’s immunity from the jurisdiction of that court, which is a matter of law to be determined in each case by the relevant court.

The idea which was presented and rejected by GNSO:

The Curative Rights PDP recommendation that was not approved by the GNSO Council (Recommendation #5) reads as follows:
“Where a losing registrant challenges the initial UDRP/URS decision by filing suit in a national court of mutual jurisdiction and the IGO that succeeded in its initial UDRP/URS complaint also succeeds in asserting jurisdictional immunity in that court, the decision rendered against the registrant in the predecessor UDRP or URS shall be set aside (i.e. invalidated).”

I have my own ideas what can and how to re-write or wordsmith it to ensure all parties gets out in a clear impasse. So, since I see we can reword smith it to satisfy all parties I asked WIPO reps and others that have an arbitration checklist procedure like WIPO does the others have them not the govt. per say. I have some arbitration process in INTELLECTUAL PROPERTY cases brought to The Hague to deliberate, but we too had a process. That’s why I requested to have every other arbitration checklist so maybe and I say maybe we could ensure that we wordsmith the above in a legal but also creative way to ensure a stability that is from my perspective taken too long since 2012 if remember well up till now we have not closed this to satisfy the three parties, GAC, BOARD, GNSO but am pretty sure we can close it fast since the first thing I found today is an agreement to close it fast and unfortunately as usual GAC likes to change the UDRP process which we can’t touch but point 5 on arbitration can certainly be tweaked to work in everyone interest , may not make everyone happy but I think we can reach a consensus on.

We are set to meet every week, so so far be it from ncuc or NPOC let’s take it up together and walk it out and work on our stand. My stand is we can dissect the other arbitration models and see what comes out as a possible satisfactory final potential rewording such that it forks out in potential other directions to a swift solution that sit on it. So to all, I’d like to hear your stands as well so we can jointly formulate it. 

Kris