GNSO Working Session Note: The following is the output of transcribing from an audio recording of Jon Bing's presentation of Dispute Resolution Models to the New gTLD committee meeting in Lisbon on 24 April 2007. Although the transcription is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors. The transcription maybe incomplete or inaccurate in parts due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the meeting, but should not be treated as an authoritative record. Please note: Portion of the transcript that says "(German word) 'gutachten'" should read "schiedsgutachten." The audio recording is available at: >>BRUCE TONKIN: So I'd asked Jon Bing, who, I guess, comes from a -- I will get Jon to introduce himself, actually, with a bit of his background. But Jon is a member of the GNSO Council. And I just wanted to understand for the group, for people like me that are engineers and not legal people, what different sorts of dispute models there are, what are the sort of boundary conditions, from an engineering point of view, I guess, that they need to be able to resolve a dispute. So what information do they need from the parties, that sort of thing. So if you could just sort of give us a bit of a feel for it. >>JON BING: Yeah. Thank you. And thank you for being permitted to say something about something I have a tiny little background, but I'm afraid even talking about this little thing, you'll see that I am inexperienced in knowing all the frames and the backgrounds that we need to address the issues that are relevant. So you'll excuse me for that. But it will, perhaps, nevertheless be of some small assistance. What I'll try to do is to set -- put together typical dispute resolution models. I should point out that the terminology is used slightly differently between lawyers and between jurisdictions. So they are not necessarily extremely precise as they are presented here. And I'll try to prevent that. The first and the obvious thing is negotiations. Negotiations are always based on consent between the parties. You can't have a negotiation if the parties do not agree to negotiate. But negotiations may be contracted before the dispute, so to say, flowers up. So there may be an obligation to negotiate. The result of a negotiation also has to be accepted by the parties, and then will be converted into part of the contract between the parties. And, of course, also, if the negotiations are inconclusive, there is no solution to be found. But with all its weaknesses, this is nevertheless the obvious starting point for any dispute resolution, to get the parties to talk together and see what sort of differences of opinion and what sort of interests are identified as being at stake. And I'm sure most of you have done this more often than you care to remember. The second one is mediation. And mediation comes in many flavors. There are strong and weak parts of this type of mediation, but the typical thing is that, apart from the parties, there's a third person or persons present. And these are to help the parties to try to identify solutions. They are always based on the consent between the parties, though, again, that consent may be stated in a previous contract, an original contract. And as I said, they are directed by a third party. I call that referee, which is probably widely wrong by technical standards. But you get my point, I'm sure. The point is that those of you who have taken part in mediation know that it often works like magic, because the fact that there's a third person present who you have to argue your case for makes you listen to them in a very different way than when you argue them to the person you disagree with. And so, therefore, it often opens up psychological room for solutions. And also, often, the parties are taken into separate rooms or even goes over several countries and so on. But, nevertheless, the main point is that though the parties may be unwilling to suggest solutions, the referee may propose solutions. And there may be very different reasons for parties not wanting to suggestion a solution, maybe something like covering your own back or being able to tell your auditor that you tried for the top, you tried to get a better solution, but the referee was the one who came up with this one. So often there may be an underlying interest in reaching a conclusion but a reluctance to take the first step, and so you have a solution through mediation. Again, it has to be contracted for acceptance. Then you have arbitration. And, again, arbitration is something that recovers very many different types. The WIPO arbitration for domain names is one typical -- one flavor. This is the typical flavor. The flavor is that it is an alternative to litigation. And it is based on litigation -- legislation. That is, there is a national law which sets out how arbitration is to be organized. And then there is a contract between the parties, very often subject to formalities. And that contract specifies where the arbitration needs to take place, the law in which the -- under which the arbitration is to be taking place and which will govern the proceedings. It is, for instance, typical to use the London Chamber of Commerce or something like that. >>BRUCE TONKIN: So can I -- this is something that I struggle to understand when you're talking about legislation. Do you mean there is legislation about how arbitration should happen? >>JON BING: Yes. >>BRUCE TONKIN: That's correct? >>JON BING: Yes, that's right. >>BRUCE TONKIN: And then when you are arbitrating, what basis are they making their decision, I guess? >>JON BING: Yeah, well, as you'll see, if it -- just we'll leave to see on the next slide. Just notice there that usually if you choose arbitration and choose the contract of law -- the law, that is usually accepted by a court. So if you have an arbitration clause in your contract and then you sue, the court will refuse to accept the case and say that it has to go to arbitration. >>BRUCE TONKIN: So the decision is based on -- if it's to do with the two -- a contract, say I have a contract between two parties to build a house or something, and then the arbitration basically is, what, they're looking at the contract itself and then deciding who's in the right and who's in the wrong against that contract; is that? >>JON BING: Yeah. If you take a contract, they first will decide on the forum. That is decided in the contract. Then the forum, laws of procedure, evidence, and so on, will lift from the law of the forum. The substantive law will be decided either by the contract itself or by the arbitration court. But usually it will be decided by the contract itself. >>BRUCE TONKIN: Yes. >>JON BING: So you, for instance, will have that this contract will be -- will be decided by the Chamber of Commerce in London, according to Turkish law. And it's very typical -- very common that the court applies the law of a different country than in which it is situated, than the law of the country in which it is situated. >>BRUCE TONKIN: So you need to take me through that again. So you're saying that they go to an arbitrator in London, and then they apply Turkish law? >>JON BING: Yeah, for instance, yes. So it is very common that the contract specifies a law for the contract which is different from the law of the country in which the forum is located. >>BRUCE TONKIN: Right. Now I understand. >>JON BING: But these things can get very complicated, I'm afraid. >>BRUCE TONKIN: So you're saying, if I understand this correctly, you're looking at the contract, and then we're also putting that in the context of the laws of Turkey, for example; is that what you're saying? In your example. >>JON BING: Yeah, that they are -- usually there's better ways of distinguished law. But usually one distinguished in law procedure, which is the law of how to present evidence and who is going to say what when and so on, that is set out in a certain law, and that will be the law of the forum where the court is placed. But then the substantive law, the law that decides who has the right or the wrongs, that can be chosen by the parties, usually chosen in the contract. And that may be different from the law of the forums. And it also should be said that an arbitration court has great freedom in itself to decide how to proceed. And we will come to that in a second. >> Can I just (inaudible). >>JON BING: Well, it calls itself arbitration. >> (inaudible) arbitration and we do not think -- >>JON BING: Thank you. As I said, arbitration has -- comes in many flavors. And, of course, what WIPO does not have is the basis in the national law. It doesn't -- the arbitration is not based on the national law, which sets out the framework. And that is a big difference, as we'll see in the second. Just to take these things, the panel are named according to the procedure usually set out in the legislation. The parties usually have the control over who is to be named as panelists. But there may be a special rule on how to name the chair. It may be typical to have three arbitrators. There's no rule. And then comes the different two very important things. The first is that the decision is binding upon the parties. And the third, which is rather unique for arbitration, is that if the arbitration complies with the New York Convention on arbitrational decisions, it can be executed in any other country which is party to that convention. It's a convention from the 1950s, and nearly all countries are party to that convention. And it has this extreme advantage in perhaps all contexts, that if you're able to actually create an arbitration court which is accepted under the New York Convention, you have an internationally binding decision. And as there is a great deal of freedom in how you do this, you don't have to do it in a traditional way, you may set out that it should be -- procedure should be by e-mail, maybe one panelist, perhaps, only, and so on, so that this -- I think there's a great deal of potential to be found in this arbitrational strategy. But it has the disadvantage that it needs a legislation in the basis. But legislation is, of course, not too difficult to find. These are the conventional advantages of arbitration. It's speedy dispute resolution. Only one instance it's not -- can't be appealed. You have a control of the expertise brought onto the decision. You have a control of the procedure and the time spent. You have control of the costs, though they will be high usually, often. There's a confidentiality. They are confidential proceedings. And there's international execution, if qualified, according to the convention. >>LIZ WILLIAMS: Jon, just a question of clarification. It can be confidential or it is, it must be? >>JON BING: Well, I don't think it must be, but it can be confidential. It is opposed to court case under all the democratic countries will have public court cases. It is part of the democratic principles that we should know what the court decides, at least the decision itself, while the arbitration may be completely confidential. I here name WIPO, but that is based on contract. It's executed by registrar and do not probably qualify to the New York Convention. And also, it may be challenged by national court. And I think the success of the WIPO procedure is very dependent upon the international reputation for WIPO itself. That you don't have more problems with it. >>BRUCE TONKIN: So let's -- just go back to that one, because there are other elements that I've heard described about this a little bit as well. And that is that it's -- it doesn't have any standing in courts, either, does it? So, in other words, the outcome of that UDRP dispute doesn't count as evidence in terms of the court? >>JON BING: No. Well, I'm sure this is maybe different in different jurisdictions. But if I speak for my own jurisdiction, the WIPO decision will not be binding for a Norwegian party. The Norwegian party might take that to court. >>BRUCE TONKIN: To a court. >>JON BING: But the court would look at that WIPO decision and say, "You must be stupid taking this to court. You already have a decision from the WIPO, and you know how the reputation of WIPO in this respect, so we will, of course, decide exactly identical to WIPO." >>BRUCE TONKIN: Is there any statistics -- I don't know whether Steve would know this or others -- but any statistics of decisions that have been -- from UDRP that have been overturned by court? >>JON BING: Perhaps you know the answer. Do you? (Inaudible.) >>JON BING: I do not. >> (Inaudible) You know, I think I'm very happy that WIPO is on the screen, and I'm not sure if it's really (inaudible). >>BRUCE TONKIN: It's an ICANN procedure, yeah. WIPO is a dispute resolution provider, yeah. >> So WIPO (inaudible). >>JON BING: Indeed, indeed. >> And the statistics of (inaudible) statistical data, but at least in WIPO's experience, I think it's cases going to court after (inaudible) proceeding is less than one percent. >>BRUCE TONKIN: Yeah. >> (inaudible) in WIPO cases having been overturned, I don't know, for example, (inaudible) is -- >>AMADEU ABRIL i ABRIL: (inaudible). >>JON BING: But compared -- >> But it got overturned again, though. >>JON BING: But compared to the number of cases that's been solved this way, it is very, very tiny. And I stand corrected with your observations on the WIPO's role in this. But I think it must be permitted to observe that the reputation of WIPO is a great deal of the explanation that this actually works in practice. I thought I'd mention consumer tribunals. These are known in extremely many variations. They work within the territory. They usually have dispute mechanisms based on self-regulation. They often are supported by the government. And they are seen as an alternative to court proceedings. They're simplified and local procedures. They are not binding, but, by consensus in the market, they are followed usually. And they can only be upheld, enforced, within the nearest jurisdiction. There has been attempts to introduce something like consumer tribunals for electronic market in Europe. As far as I know, they have not been successful. But there have been attempts. >>CHUCK GOMES: Question, Jon. So would this only apply if the two parties in the case of applicants for a new TLD were from the same jurisdiction? >>JON PETERSON: Yes, I think so. It would be something like -- Let's take dot travel. There's travel agencies. And, as you know, people travel on holidays and they often do not find that the quality was as they expected. To go to a court case would be extremely expensive. So that is not really an option. But in order to keep the customers happy, the travel agencies have banded together and offer a dispute resolution system so a disgruntled customer can take the case to this tribunal, and it'll settle it, and the travel agencies will follow it. And, of course, you can follow the same model for, for instance, a dispute resolution mechanism for country domain or another domain, or a top-level domain. It could be -- it's a question of self-regulation. So you only regulate yourself, unless you are willing to accept the decisions that -- the question of enforcement does not arise. And then -- let's see. Then comes -- This is, of course, the general example. That is litigation. And a party would -- with a qualified interest in a dispute may take a civil action before a court in the qualified interest. There is a certain reality. The court will typically uphold contractual clauses, including arbitration clauses, choice of forum, choice of law, et cetera. But decisions can only be executed within the territory, as you know, with the exception of conventions which make the national decisions enforceable outside the territory. So there is among many countries often bilateral decisions that civil decisions can be enforced outside the territory. But there's no general system. And this is expensive, and it has usually three tiers, first instance, appeal court and, Supreme Court. It takes time, and it's expensive, and it's completely, it is completely off scale for the type of disputes that we are -- This is -- the small claims court, I just wanted to mention that, because that is something that some of you may know, for -- within your own countries. Again, they come in an extremely wide variety of variations, but they decide to settle small claims, money claims, for 1,000 Euro or something like that. And it is rather obvious for all involved that it would be -- wouldn't be appropriate to go to a full-fledged court proceedings for that. On the other side, it would be -- wouldn't be too good if you weren't able to pursue your claim. So there's variations of small claim courts. They may be special tribunals or may be special procedures before the general court, and there are many examples of their being nearly completely computerized. So there's a computer system deciding whether you should have your small claim or not. I tried to set out some of the challenges of string evaluation. And one of the problems is, of course, that those who disagree may not be bound by contract. And so you can't rely on their contract to govern how this dispute is to be resolved. And a second problem is that the courts of several countries may have jurisdiction at the same time. Third problem may be that whether you can enforce a decision will depend on the presence within the jurisdiction. Say if the party -- A court may have jurisdiction over the conflict, but one of the parties of the conflict doesn't own anything in that jurisdiction, and so it doesn't really help very much. I think this is, of course, only my own uncertainty, but I'm uncertain as to the relation between the ICANN policies and contracts and how they will be respected and taken into account if you don't have a contract to fall back on between the parties. And then they have the recognition of these decisions by alternative dispute resolutions, which, in practice, will rely on us in the WIPO case, their reputation, and on the consensus, international consensus, to take them into account. There exists very few examples of civil courts of an international nature. And there are treaties which introduce dispute resolution. But that is not typical for treaties. Treaties are, to some extent, gentlemen's agreements. And that is one of the things that has been seen as lacking in treaties. So World Trade Organization has a dispute resolution with teeth, but that is only between states. So there is no, as I can see it, obvious alternative to model such dispute resolutions on. But I only have a few days to develop this, and there might be -- International Chamber of Commerce might provide some interesting experience. But I haven't looked at that. That was -- >> STEVE METALITZ: Could I just ask a clarification on your last slide. When you say there's not a contract, it's not initiated by a contract, but, in theory, it could be a condition of applying for a string would be that you would agree to a certain dispute resolution procedure, and you would agree to be bound by it and so forth. And couldn't that -- >>JON BING: So the applicant could be bound. But the one who is opposing it -- >> Yes. >>JON BING: -- will not -- >> Well, it would in the case of string contention where two are seeking the same one. But other than that, you're right. >>JON BING: I did try to make a chart, but that probably hasn't made it over, but make a chart of the possibilities. And I think if you're able to structure about 24 different scenarios -- or exactly 24 different scenarios, because they're rather different whether the conflict is between two government agencies, between the government and a private agency, within the same jurisdiction, or outside the same jurisdiction, and whether they are for -- either to stop a string or to have a string which people want to restrict or to transfer the ownership of a string. So altogether, I think this comes up to 24 different solutions, or categories, and one could discuss them for each category what would be the appropriate dispute resolution mechanism for that category. And I did make that rather complex and certain chart only to indicate that perhaps some of the discussion that I have seen may have been too simplified, that it looks like it was one type of conflict, but there really is at least, as our small discussion brought out, at least more than one type of conflict. >>BRUCE TONKIN: Let's just take one particular dispute, which is confusingly similar. The parties are ICANN -- it's located in the United States. It could be the applicant, wherever they're located. And the complainant, wherever they're located. Is one approach basically to say that we're going to use a particular U.S. law to govern that decision, and then the -- because I gather what you're trying to do is, you mentioned that you might go to the international -- I don't know, some arbitrator in -- in the United Kingdom, and then you say that the law of Turkey applies. So are we sort of -- we essentially have to identify the law first; is that right? >>JON BING: Yes. >>BRUCE TONKIN: So would you say -- just say, for example, I chose, because ICANN is located in the U.S., so I use the law of the U.S. It could be the arbitration might happen outside of the -- >>JON BING: But ICANN, nearly like your -- reflects, someone will tell me this, but they introduce California as the forum, Californian law as the law governing the contract. So if you have a contract, it'll be decided by Californian law. >>BRUCE TONKIN: That's right. So the registry agreement -- is that your understanding, Chuck? I don't suppose it matters, because you're in the U.S., anyway. Although you're not in California. >>CHUCK GOMES: (inaudible). >>BRUCE TONKIN: But you'd be bound by -- the contract itself is bound by the law of California; is that right? For dot com? Yeah. So if you use U.S. law, I suppose, as the foundation for the dispute, and then you're saying, okay, so we're going to use U.S. law, or maybe be even more specific, Californian law or federal law or whatever, because that's where the -- Jon's shaking his head. You can't do federal? You have to do a state? Right. Explain that. Why is that? All right. So -- >>STEVE METALITZ: It's basically because matters of contract are matters of state law in the U.S. For the most part, it's not a federal law of contract. >>BRUCE TONKIN: Okay. Okay. >>STEVE METALITZ: With some exceptions. But if you and I enter into a contract, even if it's -- if we end up in federal court, they're probably going to apply the law of the state about how you interpret the contract and so forth. >>BRUCE TONKIN: Right. So I'm just trying to sort of get the flow. If I'm using -- if I'm doing confusingly similar for a second, so what am I saying? What's the contract that -- the contract, I suppose, that we're binding here is there's a contract between the applicant and ICANN is the -- is, if you like, the contract that you sign when you submit your application. So I have a contract between the applicant and ICANN. And then I'm saying that this contract is going to be in California, is the law of that contract. And then I'm going to deal with the dispute on that contract, which basically says the string can't be confusingly similar, I suppose. So that's probably a matter of contract. And then what are we saying, that we're applying some U.S. law of the definition of confusingly similar? Is that how that -- >>STEVE METALITZ: You could do that. There, you could refer -- Basically, anytime there's going to be an arbitration or any other decision maker, they need to know what law are they supposed to apply or what standards are they supposed to apply. >>BRUCE TONKIN: And that's what I'm trying to get at. >>STEVE METALITZ: And it could be specified in the contract, that you would apply, you know -- in determining whether it's confusingly similar, the decision maker will apply "X" law. >>BRUCE TONKIN: Right. Ken. >>KEN STUBBS: Maybe Mike can explain this better than I can, or help me out here. I was sued as chairman of CORE by someone. And they were able to take the CORE into the -- the jurisdiction into California on the basis that CORE had a contract with ICANN as an accredited registrar. So it would seem to me that if the contract for the application is a California contract between ICANN and the party who's applied, that the same basic laws would provide for anything to be dealt with. It was the Ninth District Court, Keller, here in Los Angeles. So I'm guessing that would -- I'm not sure. >>MICHAEL PALAGE: Well, yeah, I think that was in federal court. And based upon -- as Steve had mentioned, it is possible to go into federal court if you meet certain criteria -- diversity of citizenship, also minimal amounts in question. So those are some of the criteria that you need to tick off the boxes prior to being able to file a claim in federal court. However, as Steve mentioned, generally, federal courts will apply state law in interpreting the contractual provisions. Now, the one thing that I think, Bruce, you raised, is, does an applicant subject themselves to jurisdiction under California law by purposely availing themselves of submitting -- >>BRUCE TONKIN: Yeah, they're signing the application to do so. I think that's what we're trying to get at. We're making them bound by the process, by agreeing to -- just as if I'm signing the registry agreement, I'm bound by that process at the point I sign the registry agreement. We're saying this is effectively like an application agreement, which then defines how to would operate. >>WERNER STAUB: Just a question. Isn't that a separate issue? We were just talking about whether the string confusability question needed or not a reference as to what law to use. And that is not certain, in my mind. It could be something that's a concept that is, I was told, used in construction in Germany, which is called (German word) "gutachten," which is actually called "binding opinion" in some cases in English. Just an expert is going to be named, and that expert advice is going to be binding. He's going to decide. That's it. And this does not necessarily have a reference to a law. Because confusingly similar is a linguistic problem. >>BRUCE TONKIN: Yeah. So this is fundamentally -- and we're going to run out of time -- but this is really -- you know, there needs to be work done on this before the council can sign off on this whole process. I want someone who's an expert on this area to map this out for me, basically. But do I need a law or not is really my question. And you're saying I don't. Amadeu, you had a comment? >>WERNER STAUB: It depends. >>BRUCE TONKIN: I'm trying to deal with "confusingly similar," just one of our many disputes. How am I getting set up a process for dealing with confusingly similar? >>AMADEU ABRIL A ABRIL: I think that confusingly similar is the simplest case. We will have lots of problems with all the other things, like I oppose various running dot bank because I am a bank. But the simple one -- >>BRUCE TONKIN: Just start with the simple one. >>AMADEU ABRIL i ABRIL: The simple one, being confusingly similar, I don't think we need to say anything regarding reference to the governing law, because probably there is no way to define which is the governing law. It's very clear in the case that you have both companies in one location, under one jurisdiction. It's very simple for an activity that's physically located in one area. But that's most probably not the case we will face. >>BRUCE TONKIN: Yes, I think that's not. >>AMADEU ABRIL i ABRIL: So look at what happens at the UDRP. There is no reference to the law that's applied. The principles -- you know, this is confusingly similar -- then you judge. And, indeed, in case that both parties belong to a legal system, you will interpret that according to the general principles of that legal system. It's a legal tradition, you use the common understandings in that, you know, legal systems that share some common principles. And if not, there is some, let's say, shared principles worldwide regarding what is confusing, what's similar, and what's a trademark. But there are weaker levels. And I think that here we can move from that. So we simply send an expert to see whether, as a matter of fact, this is confusingly similar, taking, you know, all these principles that come from the legal system, but not applying the legal concept of confusingly similar in a given jurisdiction, because we don't know beforehand, we will never know beforehand. >>BRUCE TONKIN: Right. So Amadeu -- and I will go to Jon in a second -- I just want to understand what you're saying. So, basically, in this agreement, I basically say that one of my criteria for getting a string is it's not confusingly similar. >>AMADEU ABRIL i ABRIL: Yep. >>BRUCE TONKIN: And then it goes to a dispute process. So the dispute process says, here's a contract between these two parties. One of the criteria of the contract is the string is not confusingly similar. That, though -- I suppose that makes ICANN part of that dispute process, which is what I was thinking we're trying to avoid. 'Cause UDRP doesn't involve ICANN nor the registrar. It's -- >>AMADEU ABRIL i ABRIL: And, quite frankly, for confusingly similar, I will smile to WIPO and say, "You could handle that. This is what you do all the time for domain names," WIPO and NAF and others. But WIPO probably has most of the cases. In nearly all of the cases when you have applicants from different jurisdictions, right -- which is not the case very often for NAF, registration case -- sorry, UDRP cases or the (inaudible) dispute resolution outside that area. So, once again, it's -- you say the legal concept is the decision. But this just supplies remits to you a question of fact. Confusion is a question of fact in this case. And all the tests are factual cases, will people be misled, misguided? You know, you apply different sets of criteria here. And the important thing is that someone from outside decides this with all the evidence and all the arguments and all the usual tests. It's not saying beforehand which exactly (inaudible) will it apply, because they are the ones applied by this concrete judge at the federal level of the United States or in Germany or wherever. I repeat, we don't know where the applicants will be. >>BRUCE TONKIN: So you're saying we're okay -- and, Jon, do you want to respond to that? Is that making sense? >>JON BING: Yes, it makes sense in a way. Let me say a few things. In the United States, people have a great deal of experience in these matters. But the experience is taken from a large jurisdiction divided into small jurisdictions, and our problems are slightly different, because we do not live within this big federal jurisdiction and make a choice in between it. We have to do it a different way. But I think that in your question, there is a simple strategy. And that strategy is to say that if anybody approaches ICANN, the first thing he or she does or it does is to do a precontract which governs the contractual negotiations. Right? So you first, before you are permitted to enter into contracting, you do a precontracting, which governs exactly things like you mention, and so if you will have a discussion of confusingly similar, you have a simple but authoritative way of doing it, for instance, an extremely wise person or an extremely well reputational organization which is qualified in that contract and which easily can be activated, speedily make the decision at a low cost, and that is it, and it's governed by the contract. >>BRUCE TONKIN: Right. And so -- >>JON BING: And that confusingly similar can, as mentioned, can be an independent concept. It doesn't have to be a concept which is derived from any jurisdiction. It can be built up to experience within that system. >>BRUCE TONKIN: And so to deal with the issue that the complainant is potentially -- well, is not bound by that process, let me just see if I understand how that works. Unless you say that the basis of challenge is you have to (inaudible) equivalent of that agreement, otherwise, you can't challenge, I suppose, is another way of looking at it. In other words, your only other option, then, is to go to court. >> Yeah, I don't think I would go down the road that you're waived from additional claims later on. But ICANN is deciding whether to approve or not approve an application. >>BRUCE TONKIN: Yes. >> And ICANN would set out the guidelines saying, in order to approve the application, if there's some kind of string contention or some kind of objection, this is the process we're going to go by. The applicant will sign onto that. Anyone who wants to challenge it could use that process as a vehicle. >>BRUCE TONKIN: Right. >> And then ICANN, assuming that it rejects the opposition and grants the string, that party could still raise a lawsuit later on. >>BRUCE TONKIN: And then -- >> And then it just goes to the court process, yeah. >>BRUCE TONKIN: So you're not saying that you would do some sort of thing by a complainant using our process, they agree not to take any further action. You're saying not to do that? >> Right. >>BRUCE TONKIN: And why is that? >> Because, again, you have the contractual issue where the complainant doesn't sign onto that process. And then you want to encourage them to participate in that. If I'm going to waive my right, I'm not going to participate in some jurisdiction that I'm not comfortable participating in if I know that's my only shot. I'm going to go straight to my court that I'm comfortable with. >>BRUCE TONKIN: Right. Okay. Mike. >>MICHAEL PALAGE: And the reality is, since the ultimate inclusion of a TLD into the root A zone file is going to involve action by the U.S. government approving the recommendation and then changing it, since that's located in the U.S. -- >>BRUCE TONKIN: It's ultimately going to be the jurisdiction. >>MICHAEL PALAGE: -- it's potentially, I would argue, a trademark owner who has lost at every other tick box potentially will look at the dilution -- -- they will potentially argue -- file a federal claim of dilution, seeking the halting of adding that TLD to the zone. So there's -- I think what John -- >>BRUCE TONKIN: So they could go for a -- what do you call it? >>MICHAEL PALAGE: Restraining -- injunction, TRO. >>BRUCE TONKIN: Injunction, yeah. It's -- always let that process happen. >>MICHAEL PALAGE: And that's, as I said, totally outside. But I think what Jon is saying is, people will be very concerned about ticking a box where they may be -- >>BRUCE TONKIN: They waive their rights. >>MICHAEL PALAGE: Where they waive their rights. I think that's a very valid point. >>BRUCE TONKIN: Okay. I've got to go. So -- but I think that's been useful. It helps to clarify some of these different methods. And I think we really need to articulate in the report -- just map this out a little bit more so people understand how these dispute processes would work and some examples, I guess, before the -- before June. Olof. >>OLOF NORDLING: Talking about it, I recall the ones -- the European Telecommunications Platform made a pretty lengthy overview of various dispute resolution procedures and bodies. And I could send that to the list for the avid readers among you. >>BRUCE TONKIN: Yeah, please do. So what was that, Olof? >>OLOF NORDLING: That is an overview made by the European Telecommunications Platform, a little association which I was deeply involved once upon a time. I actually launched it. So five years ago, I think they made an overview of various dispute resolution procedures and bodies, of course, in the context of -- well, primarily interconnection disputes, but not only that. But it's much more general than that. And I think it could be useful as -- if you look a little -- the last, latest 50 pages or so of it. >>BRUCE TONKIN: Okay. That would be great. So we'll get Jon's presentation sent around. And if you can send that around as well, Olof, I think it would be good. I'd certainly benefit from reading that and trying to understand what all these legal -- eminent legal experts on our council and committees already understand. (inaudible). >>BRUCE TONKIN: Okay. Good. Well, thank you, everyone. That's the end of today's proceedings. And we'll see you tomorrow. Thanks. |
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