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Recommendation 5: 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).
2. On 19 July 2018, the GNSO Councilacknowledged receipt of the PDP Final Report, noted that, “[i]n view of the need to consider the topic of curative rights protections for IGOs in the broader context of appropriate overall scope of protection for all IGO identifiers (including IGO acronyms), the GNSO Council intends to review this Final Report … with a view toward developing a possible path forward that will also facilitate the resolution of the outstanding inconsistencies between GAC advice and prior GNSO policy recommendations on the overall scope of IGO protections”, and confirmed its “intention to act on the recommendations that have been developed by the Working Group at the earliest opportunity following its review and deliberations on these topics”;
3. The GNSO Council has discussed the PDP Final Report on various occasions, including at a webinar conducted on 9 October 2018 and during the GNSO Council’s meetings in
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August 2018, October 2018, November 2018, December 2018 and January 2019;
4. As part of these discussions, the GNSO Council also reviewed the procedural options currently available to it under the GNSO’s operating rules and procedures (see, e.g.: https://gnso.icann.org/en/drafts/igo-ingo-crp-procedural-options-council-29nov18-en.pdf andhttps://mm.icann.org/pipermail/council/2018-December/022153.html);
5. At the ICANN63 Public Meeting held in Barcelona, Spain, the GNSO Council agreed to withdraw a motion to vote on the PDP Final Report submitted for the Council’s October
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2018 meeting, in view of a number of concerns about the report that had been raised by several Councilors and stakeholder groups;
6. On 21 October 2018, the Chair of the Governmental Advisory Committee (GAC) sent aletter to the GNSO Council leadership requesting an opportunity for the GAC to engage with
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the GNSO Council “as a matter of urgency; and [asking] that the GNSO Council gives serious consideration to the option of deferring its decision on the named PDP final
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recommendations until a dialogue between GAC and GNSO Council has been conducted”;
7. On 14 January 2019, the GNSO Council leadershipresponded to the GAC Chair’s 21 October 2018 letter, welcoming the GAC’s wish to engage in an “open and constructive dialogue”;
8. At the ICANN64 Public Meeting held in Kobe, Japan, the GNSO Council leadership described the procedural options that the Council is considering and sought the GAC’s feedback
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on the GAC’s willingness to participate in a targeted effort focusing on the issue of curative rights for IGOs and possibly drawing on the community’s recent experiences with
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the Expedited PDP on the Temporary Specification and Work Track 5 of the GNSO New gTLD Subsequent Procedures PDP;
9. The GAC’sKobe Communique noted the GAC’s “fruitful exchanges with the GNSO Council regarding the possibility of restarting the PDP on curative protections, under
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conditions amenable to all interested parties, including IGOs and interested GAC members, with a view to achieving mutually acceptable results [with] a timeline with a targeted date
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associated with such a course of action”; and
10. As a result of the numerous discussions that have taken place since the submission of the PDP Final Report, the GNSO Council believes it has thoroughly considered all the
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available options and now wishes to proceed in the manner specified below.
RESOLVED:
- The GNSO Council approves, and recommends that the ICANN Board adopt, Recommendations 1, 2, 3 & 4 of the PDP Final Report. The GNSO Council directs ICANN staff to prepare a Recommendations Report for delivery to the ICANN Board in accordance with the process outlined in the ICANN Bylaws.
- The GNSO Council does not approve Recommendation 5 of the PDP Final Report and directs the Review of All Rights Protection Mechanisms in All gTLDs (RPM) PDP to consider, as part of its Phase 2 work, whether an appropriate policy solution can be developed that is generally consistent with Recommendations 1, 2, 3 & 4 of the PDP Final Report and:
- accounts for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances;
- does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;
- preserves registrants’ rights to judicial review of an initial UDRP or URS decision; and
- 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.
- The GNSO Council intends to amend the charter for the RPM PDP Working Group to reflect this new instruction accordingly.
- The GNSO Council affirms that it will take into account its approval of Recommendations 1, 2, 3 & 4 in considering the recommendations it receives from the RMP PDP Working Group.
- The GNSO Council thanks all the members of the IGO-INGO Access to Curative Rights Protection Mechanisms PDP for their hard work in completing this PDP.
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