Comments from IGOs
Intergovernmental Organizations thank ICANN and the GNSO for the opportunity to comment on ICANN's Preliminary Issue Report On Amending The UDRP And The URS For Access By Protected IGOs and INGOs. Recalling the Global Public Interest IGOs participated throughout the GNSO IGO-INGO PDP Working Group effort, in good faith, on a fundamental position conveyed throughout ICANN consultations: protecting IGO names and acronyms in an expanding DNS serves the global public interest. With ICANN's expansion of the DNS comes increased responsibility to prevent opportunistic abuse of IGO names and acronyms. The international community has long recognized the need to protect IGO names and acronyms. Beyond international treaties and national legislation, all GAC Communiqués since ICANN's Toronto Meeting affirm this public interest. Against this background, IGOs dissented from the Working Group's recommendation against preventative protection for IGO acronyms (which is why the report was unable to claim, in ICANN parlance, "full consensus"). If, however, owing to the Working Group's recommendation, protection for IGO identifiers at the second level (other than for exact-match full IGO names) is to be curative rather than preventative, it is vital that the limited protections ICANN is willing to grant are implemented in as effective a way as is possible within a registration-driven framework. ICANN Implementation of IGO Protections The focus of the GAC, GNSO, and NGPC is now on second-level protection of IGO identifiers through administrative dispute resolution mechanisms. To facilitate implementation of the protection mechanisms now left on the table, IGOs formulate below a number of practical but core design points. Separate Mechanism: IGOs agree with the Staff recommendation that it is more appropriate to create a separate dispute resolution procedure modeled on the UDRP (and one on the URS) but narrowly-tailored to accommodate the particular circumstances of IGOs. Having a separate procedure (under a different name) should not only streamline the actual design and implementation process, but also importantly avoids risk of interference with third-party rights and obligations under these existing Rights Protection Mechanisms. Scope: The UDRP (and URS) requires complainants to hold rights in a trademark. A separate administrative dispute resolution procedure for IGOs would be accessible on IGO-specific criteria. To this end, IGOs have previously provided a list of IGO names and acronyms that lends itself to inclusion in the GNSO-recommended Trademark Clearinghouse. (Inclusion of IGO names and acronyms in the Trademark Clearinghouse would be in the relevant languages, with Claims Notices in perpetuity.) Jurisdiction: Typically, IGOs (unlike NGOs) are constituted by international treaty and are not subject to the jurisdiction of national courts. In a UDRP-like (or URS-like) procedure, if a "mutual jurisdiction" clause were still considered necessary, IGOs would be prepared to consider mutual submission to arbitration or another administrative process for such limited "appeal" purpose. Cost: IGOs appreciate ICANN's understanding that, if IGO protection will not take the preventative form that has been sought, IGOs should not bear case-related costs to invoke the curative mechanisms now under discussion. IGOs' public funding is not intended to be allocated to avoidable DNS-related disputes; the full costs of curative mechanisms, including any appeal processes, must be subsidized by ICANN as DNS custodian. Public Causes at Stake This community-led discussion seems to be about the commercial registrability of a proportionally trivial number of domain names. Truly at stake is the way in which the ICANN community is here willing to deal, on a registration level, with legally-recognized public causes of global human impact. IGOs are concerned to see how the reduction of harm coming to these causes in the DNS risks becoming sacrificed to ICANN process and policy-primacy tensions. Credible DNS self-regulation takes account of the broader needs of the global community. While IGOs appreciate the careful balance that ICANN stakeholders are charged with finding on this matter, it is imperative that the ICANN community and leadership reach a worthwhile result. IGOs stand ready to assist.