Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 3

In this series, I examine past behavior at ICANN, contrasting it with the Expected Standards of Behavior (ESOB), and ask you to decide for yourself whether it has been applied equally to everyone, or instead is applied selectively to achieve different results when different people are involved.

Gregory S. Shatan is an attorney at Moses & Singer LLP. He claims that the ESOB are “bedrock principles of ICANN participation” and does his “best to abide by them”.

On March 10, 2017, the highly respected Electronic Frontier Foundation sent a letter from a group of law professors and practitioners with expertise in
trademark law to the RPM PDP  working group (which is chartered to review the UDRP, URS, and other rights protection mechanisms), to help inform its work.

The very next day, on March 11, 2017, Mr. Shatan had the following to
say about that letter:

Greg Shatan: Thanks, Greg Shatan for the record. And just briefly first I would note that while the letter seems to have been self-titled the trademark scholar’s letter that the – in fact a number of the signatories are not trademark scholars or  even trademark lawyers or lawyers at all. So it’s a – I guess they had trouble filling out the roster. But in any case, you know, the letter goes into absolutely no analysis of the pros and cons as we need to do but only decides to traffic in words like secrecy and concealment and other sorts of inflammatory but not particularly analytical stuff so since we’re in a family context here.

And so, you know, I think that while we obviously have to consider these issues, you know, this, you know, BFF shot across the bow, you know, is where they’ve gotten, you know, a bunch of signatories I think is one that we have to handle with care as a resource for anything other than sheer advocacy, you know, and then – and the cover note some might call it an article they put on top of it on their blog I think, you know, is just more of the same with even less of a veneer of civility attached to it.

So it’s just basically a bunch of attack dogs that have been set
loose. So I don’t in tend to find that very convincing although I do find it a bit frightening. So I’ll , you know, look forward to
discussing these issues. And I know that some of the signatories are members of the group so I look forward to working with them in the more appropriate give and take of our atmosphere here. Thank you. [emphasis added]

For the source, see pages 58-59 of the transcript of that call, or watch the Adobe Connect Recording (starting at 1:46:45).

Mr. Shatan went even further on March 28, 2018, writing:

J Scott, you are absolutely correct.  The question was who wrote it — not what are the credential of the people who signed on to it.

The email equivalent of the commencement parade, with all the scholar/signatories bedecked in their colorful gowns and hats and looking Terribly Impressive, was edifying and amusing but beside the point.  It’s not surprising that law school professors have the backgrounds that law school professors tend to have.

I would also be curious to know how quickly signatures were gathered and what input each signatory had to the text. [emphasis added]

Are the above statements “respectful”, for instance, describing other
stakeholders as “attack dogs”? Do they “acknowledge the importance of
all stakeholders and seek to understand their points of view”?  Or is
this yet another example of a double standard? I leave it to you to
make up your own mind.