Public Comment Summary Report
Initial Report from the EPDP on Specific Curative Rights
Protections for IGOs
Open for Submissions Date:
Tuesday, 14 September 2021
Closed for Submissions Date:
Sunday, 24 October 2021
Summary Report Due Date:
Monday, 20 December 2021 (extension from Monday, 8 November 2021)
Category: Policy
Requester: Generic Names Supporting Organization (GNSO)ICANN org Contact(s): policy-staff@icann.org
Open Proceeding Link:
https://www.icann.org/en/public-comment/proceeding/initial-report-epdp-specific-curative-rightsprotections-igos-14-09-2021

Outcome:ICANN org is grateful for the feedback from the community and appreciates the submissions
about the Expedited Policy Development Process (EPDP) on Specific Curative Rights
Protections for International Governmental Organizations (IGOs). There was a total of 33
submissions: 14 individuals, 13 organizations, and six ICANN community groups. The EPDPIGOs Team is responsible for analyzing all submissions and, if appropriate, will update its
preliminary recommendations accordingly.

ICANN | Public Comment Summary Report|1Section 1: What We Received Input On
The Expedited Policy Development Process (EPDP) Team on Specific Curative Rights
Protections for International Governmental Organizations (IGO) sought input on the preliminary
recommendations contained in its Initial Report. The preliminary recommendations included
several policy options under consideration by the EPDP Team which it had not yet reachedagreement on.
The GNSO Council had tasked the EPDP Team to consider "whether an appropriate policy
solution can be developed that is generally consistent with the first four recommendations fromthe GNSO IGO-INGO Access to Curative Rights PDP [which had concluded its work in July2018] 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 ofcompetent jurisdiction;• preserves registrants' rights to judicial review of an initial Uniform Domain Name Dispute
Resolution Policy or Uniform Rapid Suspension decision; and• recognizes that the existence and scope of IGO jurisdictional immunity in any particularsituation is a legal issue to be determined by a court of competent jurisdiction."

Section 2: Submissions
Organizations and Groups:
Name

Submitted by

Initials

WIPO - World Intellectual Property
Organization

Brian Beckham

WIPO

Council of Europe

Jorg Polakiewicz

CoE

ICAO (International Civil Aviation Organization)

Pier-Olivier Turcot

ICAO

Governmental Advisory Committee

GAC

GAC

Internet Commerce Association

Zak Muscovitch

ICA

Registries Stakeholder Group

RySG

RySG

Digimedia.com, LP

Jay Chapman

JC

Leap of Faith Financial Services Inc.

George Kirikos

LoF

Telepathy, Inc.

Nat Cohen

NC

Organisation for Economic Co-operation andDevelopment

Matthew Coleman

OECD

Business Constituency

BC

BC

Registrar Stakeholder Group (RrSG)

Zoe Bonython

RrSG

World BankDavid Satola

WB

At-Large Advisory Committee (ALAC)

Policy Staff

ALAC

Namecheap, Inc.

Owen Smigelski

OS

ICANN | Public Comment Summary Report|2TurnCommerce Inc.

Jeffrey ReberryTC

Domain Registrant Rights

Max Menius

DRRIntellectual Property Constituency

Paul McGrady

IPC

UNESCO

Asoid García

UNESCO

Affiliation (if provided)

Initials

Individuals:
Name
Ted ChangTC

Mike Rodenbaugh

MR

Dan RundioDR

Michael Zachery

MZ

Philip Busca

PB

Aarti Narayan-Denning

AND

Alex Lerman

AL

Lucas Gimeno

LG

Kevin Garvin

KG

Joseph Slabaugh

JS

Pierce Dawson

PD

Mikael Kervevan

MK

Castle Holdings

CH

Paul Cotton

PC

Section 2a: Late Submissions
Two submissions were received after the 24 Oct 2021 closing date. These comments wereconsidered by the Working Group and to ensure comprehensiveness these are posted at theend of this report.
• Intellectual Property Constituency (IPC)• UNESCO

Section 3: Summary of Submissions
There was a total of 33 submissions:• 14 Individuals• 13 Organizations (this refers to submissions made on behalf of entities that are not oneof ICANN’s recognized community structures)• 6 Community Groups
Summary of Individual Submissions (14):ICANN | Public Comment Summary Report|3•All Individual commentators were opposed to developing policy recommendations thatwould apply specifically to IGOs and domain name disputes where it is the IGO that files
a complaint against a domain name registrant. Many comments focused on the risk that
registrant rights could be adversely affected or reduced if the EPDP Team’s
recommendations were implemented in a way as to restrict a registrant’s ability to file
judicial proceedings against an IGO or to effectively compel a registrant to agree toarbitration. Several commentators supported the more detailed comments submitted by
the Internet Commerce Association and Leap of Faith Financial Services. A few thoughtthat the duration of this proceeding was not sufficient to allow for input from more
affected parties and one commentator recommended translating the report to increase
accessibility and opportunity to comment.

Summary of Organizational Submissions (13):• In general, two main types of organizations submitted comments: International
Governmental Organizations (IGOs) and members and representatives of the domain
investor community. In addition, a domain name registrar filed its own comment,
separately from the RrSG.
• IGO Community:o WIPO welcomed the EPDP Team’s work to clarify an IGO’s ability to file a
dispute and on the issue of IGO jurisdictional immunity. However, it wasconcerned that arbitration did not seem to be recognized as a globally acceptedmeans of resolving disputes despite this avenue being known to the ICANN
community and referenced in ICANN’s contracts with registries and registrars.
o Several IGOs endorsed WIPO’s comments, including the CoE, ICAO, OECD,
World Bank and UNESCO. IGOs supported the elimination of the need for IGOs
to agree to submit to Mutual Jurisdiction when filing a complaint and arbitration
as a default option following a UDRP or URS proceeding.
• Domain Investor Community:o ICA largely opposed the preliminary recommendations, including eliminating therequirement that IGO complainants submit to Mutual Jurisdiction as it believes
this will increase the likelihood that a national court will refuse to assume
jurisdiction in a post-UDRP action. ICA also highlighted the need to protect
registrant rights and noted that the design of an arbitration procedure should bedone during the policy development phase and not left to an implementation
review team. It also suggested that proposed changes be first considered by theforthcoming Phase 2 Rights Protection Mechanisms policy review that will focus
on the UDRP, prior to adoption of any recommendations from this EPDP.
o Other commentators in this group also referenced or agreed with ICA’s concerns;
in particular, highlighting the need to preserve a registrant’s right to file a court
proceeding, opposing removal of the requirement to submit to Mutual Jurisdiction
and noting that IGOs currently have access to the UDRP, with some IGOs having
already used it. These commentators include Digimedia, Telepathy,
TurnCommerce and DRR. Commentators also pointed out that judicial review
remains a critical avenue to address problems such as reverse domain namehijacking and flawed UDRP panel decisions as well as the importance ofdeveloping balanced solutions.
o While some commentators in this group were not necessarily opposed toarbitration as an option following a judicial process, they did not support thepremise that this option be predicated on removing the Mutual Jurisdiction
requirement for IGO complainants.
ICANN | Public Comment Summary Report

|4

o

o

•

Leap of Faith expressed the same concerns as the other commentators in thisgroup in its opposition to the preliminary recommendations. LoF noted that IGOs
should not be granted any new rights at the expense of registrants and pointed
out the UDRP was intended to handle clear cut cases, not situations where twoparties have legitimate competing interests. It proposed an alternative toarbitration that it believed will address a “quirk of the process” that it had also
raised during the previous Curative Rights policy development process. LoF
suggested incorporating a “Notice of Objection” process that is used in certain
legal jurisdictions that may eliminate the need to agree to submit to Mutual
Jurisdiction. LoF noted that immunity is a defense to a dispute and is thus notapplicable when the dispute is initiated by the party seeking to claim immunity.
LoF’s comments were supported by other commentators in this group, including
Telepathy which specifically supported the proposed alternative of a “Notice of
Objection” process.

Registrar:o Namecheap submitted a comment expressing its concerns that the EPDP is notproperly representative of all stakeholders in the multistakeholder model andbelieved that consequently the preliminary recommendations favor trademark
and arbitration provider interests over registrants. As well as supporting the
RrSG’s comments, Namecheap also noted that the recommendations may
create new trademark rights for IGOs and have the effect of compelling
registrants to pursue costly arbitration under foreign laws. It proposed that theICANN community consider requiring IGOs to waive immunities when assertingrights against registrants.

Summary of Community Groups (6):• GAC referred to its previous instances of Consensus Advice regarding IGO privileges
and immunities under international law. It supported arbitration as the exclusive, or atleast the default (with an opt-out option for the registrant), final mechanism to resolve
disputes concerning IGOs, noting that the alternative solutions will involve an overly
complex, inefficient, and costly process. GAC noted that if registrants file court
proceedings they should not be able to subsequently commence arbitration if the court
decides not to hear the case on the basis of an IGO’s immunity from its jurisdiction.
• RySG and BC suggested that there be outreach to the Rights Protection Mechanisms
policy review group and review of the EPDP recommendations by the Phase 2 policy
review group respectively. While generally supportive of some of the recommendations(e.g., clarifying who qualifies as an “IGO Complainant” and allowing a registrant to opt
for arbitration following an unsuccessful attempt to have the case heard by a court),
they had concerns about proceeding with some of the recommendations as-is. For
example, BC suggested what it considered to be compromise language for the text of
the Mutual Jurisdiction clause.
• ALAC generally supported the EPDP Team’s preliminary recommendations, given thepossibility of fraud and end-user confusion were third parties to use domain names
identical to IGO identifiers. It noted that allowing for a quick arbitration process would bein the interest of end-users.
• IPC generally supported the direction that the EPDP Team is taking, particularly in
relation to clarifying the scope of eligibility for IGO Complainants and the possibility ofarbitration. However, IPC noted the need to clarify other aspects of the preliminary

ICANN | Public Comment Summary Report|5•recommendations and highlighted a few questions and suggestions for the EPDP Teamto consider.
RrSG was concerned about the lack of balanced stakeholder participation in the EPDP
and the impact of the recommendations on registrants’ ability to seek judicial recourse
following a UDRP or URS proceeding. RrSG thought that the EPDP Team’s scope ofwork is broader than the ICANN Board’s view that IGOs should not be given additionalrights beyond what is conferred by international law. RrSG also raised questions about
the need to change the existing dispute resolution procedures, the cost of arbitrationand the need to ensure that registrants are protected if the Mutual Jurisdiction
requirement is eliminated, and arbitration recommended as a final mechanism toresolve a dispute.

Section 4: Analysis of Submissions
The EPDP Team is responsible for analyzing all Public Comments submitted. To view the
EPDP’s Public Comment Review Tools and for information on how the group considered thecomments, please view their PCRT page on the wiki.

Section 5: Next StepsThe EPDP-IGO Team will analyze all the Public Comment submissions and, if appropriate,
update its preliminary recommendations accordingly. It will submit a Final Report to the GNSO
Council for consideration and vote following a consensus call within the team on any proposed
final recommendations.

ICANN | Public Comment Summary Report|6Intellectual Property Constituency
The Intellectual Property Constituency (IPC) welcomes this opportunity to comment on
the proposed Recommendations of the IGO EPDP Initial Report. Taking each in turn:
Proposed Recommendation
IPC Reaction
Recommendation #1: Definition of “IGO
The IPC supports these proposed
Complainant” The EPDP teamchanges.
recommends that the UDRP Rules and
URS Rules be modified in the following
two ways: i. Add a description of “IGO
Complainant” to section 1 (i.e., theConsider modifying “…having received adefinitions section of both sets of Rules):standing invitation to participate…” to“‘IGO Complainant’ refers to: (a) an“…having received, accepted, and isinternational organization established by
actively engaging in, a standing invitationa treaty and which possesses
to participate…”
international legal personality; or (b) an‘Intergovernmental organization’ having
Consider adding “Such use shall not be areceived a standing invitation totoken use” at the end of the final
participate as an observer in the sessions sentence, such that the revised sentence
and the work of the United Nations
reads ““Where the Complainant is an IGO
General Assembly; or (c) a Specialized
Complainant, it may show rights in a markAgency or distinct entity, organ orby demonstrating that the identifier which
program of the United Nations3 .” AND ii. forms the basis for the complaint is used
Add the following explanatory text tothe IGO Complainant to conduct public
UDRP Rules Section 3(b)(viii), URS
activities in accordance with its statedSection 1.2.6 and URS Rules Section
mission (as may be reflected in its treaty,3(b)(v): “Where the Complainant is ancharter, or governing document). SuchIGO Complainant, it may show rights in a use shall not be a token use.”
mark by demonstrating that the identifier
which forms the basis for the complaint is Consider specifying for the sake of clarity
used the IGO Complainant to conduct
how this Recommendation #1 relates topublic activities in accordance with its
the original Recommendation #2 from thestated mission (as may be reflected in its IGO-INGO Access to Curative Rights
treaty, charter, or governing document).”
Protections PDP (“Old 2”). From the
Deliberations section it appears that theintent is to supplement Old 2 but from theRecommendation alone this may be
misunderstood.
Implementation Suggestion: in order toensure that the IGO's identification isapplied consistently throughout policy
development across the organization, we
recommend that those keeping the IGO
Identifier List use the identical system we
ICANN | Public Comment Summary Report|7

set forth in this Recommendation going
forward.
Recommendation #2: Cumulative Effectof Recommendations #3, #4, #5 & #6 If
the GNSO Council approves therecommendations set out below in
Recommendations #3, #4, #5 and #6,
then the EPDP team recommends thatthe original Recommendation #5 from the
IGO-INGO Access to Curative Rights
Protections PDP be rejected

The IPC believes this Recommendation isworded poorly as it implies that theoriginal Recommendation #5 from the
IGO-INGO Access to Curative Rights
Protections PDP (“Old 5”) was notalready rejected. That Recommendation
was not adopted by the GNSO Council.
When a recommendation from a PDP is
not adopted by Council, it is dead.
Creating confusion that somehow the
failure to adopt the recommendations of
this EPDP would somehow resurrect(through non-rejection – whatever that
may be) Old 5 simply doesn’t reflect how
policy development works. This
Recommendation needs to be reworked
in order to tease out whatever concept
the EPDP team was meaning to put
forward.
.

Recommendation #3: Exemption from
Agreement to Submit to Mutual
Jurisdiction for IGO Complainants i. In
relation to the UDRP: The EPDP teamrecommends that an IGO Complainant(as defined under Recommendation #1,
above) be exempt from the requirement
to state that it will “submit, with respect toany challenges to a decision in theadministrative proceeding canceling ortransferring the domain name, to thejurisdiction of the courts in at least one
specified Mutual Jurisdiction”

The IPC supports this Recommendation
so long as the other major concepts
found in Recommendations 4 and 5 and
IPC’s comments herein make their way
into the final report. Additionally, the IPC
believes that this Recommendation would
have more support, both within the IPC
and the community generally, if acronym
domain names were carved out from thechanges proposed, e.g. the World HealthOrganization should have no particular
extra rights should it attempt to obtaintransfer of a domain name from thefamous band, The WHO. The IPC does
not support this Recommendation in a
vacuum.

ii. In relation to the URS: The EPDP teamrecommends that an IGO Complainant(as defined under Recommendation #1,
above) be exempt from the requirement
to state that it will “submit, with respect toany challenges to a determination in the
URS proceeding, to the jurisdiction of theICANN | Public Comment Summary Report

As an alternative, the IPC also supports
proposed compromise language that an
IGO “will submit, without prejudice to an
IGO Complainant’s privileges andsovereign immunity, with respect to any|8courts in at least one specified Mutual
Jurisdiction”

Recommendation #4: Arbitral Review
following a UDRP Proceeding The EPDP
team recommends that the following
provisions be added to the UDRP toaccommodate the possibility of binding
arbitration to review an initial panel
decision issued under the UDRP:

challenges to a decision in theadministrative proceeding canceling ortransferring the domain name, to thejurisdiction of the courts in at least one
specified Mutual Jurisdiction.” This
proposed compromise language isintended to allow an IGO Complainant toabide by UDRP Rules Section 3(b)(xii),
without expressly waiving its privileges
and ability to assert sovereign immunity.
Since this Recommendation seems
incomplete, the IPC will react to its
constituent elements rather than to the
Recommendation as a whole and,
therefore, express no reaction to the
Recommendation as a whole at this time.
Subsection i.

i. When submitting its complaint, an IGO
Complainant shall also indicate whether itagrees that final determination of theoutcome of the UDRP proceeding shallbe through binding arbitration, in theevent that the registrant also agrees tobinding arbitration.

The IPC does not believe this subsection
has been fully thought through. What
happens if the IGO does not so indicate
its willingness to have the final
determination through binding arbitration?
It seems to us that the combination of thisoption for IGOs found in this subsection
ii. In communicating a UDRP panel
combined with the “opt out” concept indecision to the parties where the
Recommendation 3 above could work
complainant is an IGO Complainant, thetogether to give a registrant little or no
UDRP provider shall also request that the recourse following an incorrect decision
registrant indicate whether it agrees thatby a panelist. The IPC recommends the
any review of the panel determination will EPDP team take another look at thisbe conducted via binding arbitration. The subsection and rework. For example,
request shall include information
make it clear that if an IGO chooses notregarding the applicable arbitral rules.
to submit to binding arbitration, the UDRP
The arbitral rules shall be determined bywould be handled like a regular UDRP
the Implementation Review Team which, and the IGO would have to submit to thein making its determination, shall consider jurisdiction of either the registrar orexisting arbitral rules such as those of the registrant’s home location for any postInternational Centre for Disputedecision action that a losing registrant
Resolution (ICDR), the World Intellectual may file. Conversely, the EPDP could
Property Organization (WIPO), the United implement the IPC’s above-proposed
Nations Commission for International
compromise language in UDRP Rules
Trade Law (UNCITRAL) and theSection 3(b)(xii) to address this issue.
Permanent Court of Arbitration (PCA).
.ii.
ICANN | Public Comment Summary Report|9iii. As provided in Paragraph 4(k) of the
UDRP, the relevant registrar shall waitten (10) business days (as observed in
the location of its principal office) before
implementing a UDRP panel decision
rendered in the IGO Complainant’s favor,
and will stay implementation if, within that
period, it receives official documentationthat the registrant has submitted arequest for or notice of arbitration, as
described further below.
iv. If it receives a request for or notice ofarbitration, the registrar shall continue tostay implementation of the UDRP panel
decision until it receives official
documentation concerning the outcomeof an arbitration or other satisfactoryevidence of a settlement or other final
resolution of the dispute.
v.
[OPTION 1: Where the registrant initiates
court proceedings and the result is thatthe court decides not to hear the merits ofthe case, the original UDRP decision will
be implemented by the relevant registrar
within ten (10) business days from thecourt order declining to hear the merits ofthe case.]

The IPC does not believe this subsection
has been fully thought through. What
happens if the IGO does not so indicate
its willingness to have the final
determination through binding arbitration(as discussed in Subsection i.
immediately above). Does the Provider
still request that the registrant indicate its
willingness to submit to arbitration? If the
IGO hasn’t done so, why would theregistrant? The IPC recommends the
EPDP team take another look at thissubsection and rework, as it is likely it
only applies where an IGO has alreadyindicated its willingness to have a final
determination through binding arbitration.
iii.
So long as the ten (10) business day
delay and following stay of decision
implementation is not exclusive to thefiling of arbitration, i.e. the filing of a court
action by the respondent also still triggers
the stay of implementation, the IPC
supports this subsection. The IPC
recommends the EPDP team takeanother look at this subsection andenhance its clarity.
iv.

[OPTION 2: Where the registrant initiates
court proceedings and the result is thatthe court decides not to hear the merits ofthe case, the registrant may submit the
dispute to binding arbitration within ten(10) business days from the court orderdeclining to hear the merits of the case,by submitting a request for or notice ofarbitration to the competent arbitralinstitution with a copy to the relevant
registrar, UDRP provider and the IGO
Complainant. If the registrant does not
submit a request for or notice ofarbitration to the competent arbitral
ICANN | Public Comment Summary Report

The IPC express the same concerns
regarding court actions also triggering thestay as it did for subsection iii. The IPC
recommends the EPDP team takeanother look at this subsection andenhance its clarity.
v.
The IPC can support OPTION 2 subject
to a couple caveats. Option 2 seems to
us to be a reasonable safeguard
designed to prevent undue pressure for a| 10

institution (with a copy to the registrar,
UDRP provider and the IGO
Complainant) within ten (10) businessdays from the court order declining tohear the merits of the case, the original
UDRP decision will be implemented by
the registrar.]losing respondent to seek relief from thecourts (which is in many jurisdictions, abasic human right). That said, the IPC
does not support any mandatory,
automatic, de novo appeals mechanisms
for UDRP cases filed by non-IGO
Complainants. Moreover, any suchappeal or arbitration mechanisms undervi. The Registrar shall continue tothe UDRP, such as under Option 2, must
maintain the Lock on the disputed domain incorporate appropriate safeguards, likename during the pendency of any judicial reasonable filing fees, to prevent gaming
proceedings and/or arbitration, as
and abuse by respondents. The IPC
applicable.
recommends that the EPDP team takeanother look at this subsection to
supplement it with such safeguards.

vi.
The IPC supports this subsection andbelieves that it makes much of subsectioniii. and all of subsection iv. redundant andtherefore confusing. The IPC
recommends the EPDP team takeanother look at those subsections andenhance their clarity.
Recommendation #6: Applicable Law in
an Arbitration Proceedingi. Any arbitration will be conducted inaccordance with the law as mutuallyagreed to by the parties.
[OPTION 1: Where the parties cannot
reach mutual agreement, the arbitration
will be conducted in accordance with thelaw of the relevant registrar’s principal
office or where the respondent is resident
at the election of the IGO Complainant.][OPTION 2: Where the parties cannot
reach mutual agreement, the arbitral

ICANN | Public Comment Summary Report

Since this Recommendation seems
incomplete, the IPC will react to its
constituent elements rather than to the
Recommendation as a whole and,
therefore, express no reaction to the
Recommendation as a whole at this time.
i.
The IPC does not support either option.
There is no reason to over-engineer thearbitration process to make it UDRP-likein nature. It appears that the selection ofvenue found in the UDRP is being forced
to morph into a selection of choice of law.
We do not need to create new things not| 11tribunal shall determine the applicablelaw.]

in the UDRP and then try to push theminto what is meant to be a de novo
arbitration process. ICANN should notii. [POSSIBLE ADDITIONAL STEP
interfere in the arbitration process and
UNDER CONSIDERATION: If either party leave it to the parties to decide what
raises concerns to the arbitral tribunal
claims and defenses they wish to bring toabout applying the law of the registrar’s
the arbitrator under which set of laws theyprincipal office or the respondent’s placewish to bring them.
of residence, e.g., because it does nothave a satisfactory cause of actionii.
related to the parties’ dispute, the arbitral
tribunal may request submissions from
Please see our comments on subsection
the parties as to the suggested applicable i. above. This additional step, or any
law or principles of law (which may
variants of the same, would be necessary
include UDRP case precedent) to be
if the arbitration process is allowed toapplied.]proceed without pre-manipulation by
baking in a choice of law provision.
iii. In addition, the following nonexhaustive general principles (to befurther developed by the expected
Implementation Review Team) shallgovern all arbitral proceedings conducted
through this process:a. The arbitration shall be conducted as ade novo review; i.e., the parties are
permitted to restate their case completely
anew, including making new factual andlegal arguments and submit new
evidence;iii.
The IPC supports all of the concepts
found within this subsection. In addition,
the EPDP’s final report should be veryclear that these concepts, and indeed thegeneral principle of an added binding
arbitration option for UDRP appeals,
applies only to IGO Complainants and not
to the UDRP in general.

b. The parties may select more than one
arbitrator;c. The arbitrator(s) must be neutral andindependent, and cannot be thepanelist(s) who rendered the initial UDRP
or URS decision; andd. Both parties should be able to present
their case in a complete manner.

ICANN | Public Comment Summary Report| 12

UNESCO
UNESCO wishes to express its support to the attached letter from WIPO to ICANN which wasposted on the ICANN website section on Public Comment on 22 October 2021. We would be
most grateful if you could add UNESCO to the list of IGOs expressing their support to WIPO’scomments, together with the World Bank, the OCDE, ICAO, and others.

ICANN | Public Comment Summary Report| 13