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Comment on the Initial Report on the Protection of IGO and INGO Identifiers in All gTLDs, by the United Nations, on behalf of the IGO Coalition

  • To: comments-igo-ingo-initial-14jun13@xxxxxxxxx
  • Subject: Comment on the Initial Report on the Protection of IGO and INGO Identifiers in All gTLDs, by the United Nations, on behalf of the IGO Coalition
  • From: Nastasja Suhadolnik <suhadolnik@xxxxxx>
  • Date: Tue, 16 Jul 2013 10:54:02 -0400

<div><font size=3>On behalf of a consortium of over 40 Public International
Organizations as well as of the UN Funds and Programmes, we are writing
in relation to the Initial Report on the Protection of IGO and INGO Identifiers
of 14 June 2013, prepared by ICANN staff and the PDP Working Group. 
<br><font size=3>&nbsp;</font>
<br><font size=3>Effective protection for IGO identifiers remains a critical
priority for our organizations. &nbsp;</font>
<br><font size=3>&nbsp;</font>
<br><font size=3>Having been actively engaged for several years now with
diverse ICANN bodies and advisory committees, including with the PDP Working
Group, on the issue of obtaining necessary preventative protections for
IGO identifiers (names and acronyms) at the top and second level and having
provided extensive documentation and comments to inform and facilitate
the various processes, including the present PDP, IGOs will not provide
extensive comments at this time. The PDP Working Group, via its IGO delegates
(UPU, WIPO and OECD), has been informed of our views on many occasions
and specific comments had been given on the options outlined in the Initial
Report. &nbsp;</font>
<br><font size=2 face="Times New Roman">&nbsp;</font>
<br><font size=3>The IGO Common Consolidated Position Paper here below,
which was addressed to the Chairs of the ICANN Board, New gTLD Program
Committee, Governmental Advisory Committee, and President and CEO, summarises
the essential considerations for the protection of IGO identifiers.</font>
<br><font size=3>&nbsp;</font>
<br><font size=3>The need to provide special protections to IGO names and
acronyms in new gTLDs at both the top level in future rounds and the second
level in all rounds has unequivocally been recognised on several occasions
by ICANN&#8217;s Governmental Advisory Committee (GAC) as a matter of global
public policy. Most recently, in its Beijing Communiqué, the GAC 
that the IGOs perform an important global public mission with public funds,
they are the creations of government under international law, and their
names and acronyms warrant special protection in an expanded DNS. &nbsp;Such
protection, which the GAC has previously advised, should be a 
<br><font size=3>&nbsp;</font>
<br><font size=3>IGOs would be extremely concerned by any final proposals
by the WG to the GNSO Council which would not be fully in line with the
GAC advice or which would question either the public policy grounds or
the extent of protection advised by the GAC. &nbsp;This advice has been
accepted by the Board, subject to clarification of certain implementation
issues for second level protection of acronyms, on which a dialogue is
currently in progress.</font>
<br><font size=3>&nbsp;</font>
<br><font size=3>Sincerely yours,</font>
<br><font size=3>&nbsp;</font>
<br><font size=3>The United Nations</font>
<br><font size=3>On behalf of the IGO Coalition</font>
<div align=center><font size=3><b>IGO COMMON CONSOLIDATED POSITION PAPER
<br><font size=3><b><i>Principle of IGO protection in the DNS </i></b></font>
<br><font size=3>The special status and functions of International 
Organisations (IGOs) clearly warrant the implementation of appropriate
measures for the protection of their names and acronyms in an expanding
Domain Name System (DNS). This special is supported by both critical policy
considerations and international legal norms. </font>
<br><font size=3>IGOs represent a wide range of essential global public
interests and enjoy a special status under public international law, which
clearly places them in a different category than other DNS stakeholders:
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
work towards cooperation between governments on vital issues and humanitarian
causes. </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
are subjects of international law, as is the case for States. They are
established by treaty and are conferred international legal personality
as well as legal personality in the legal systems of their Member States.
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
are funded primarily by public funds provided by their Member States. </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
and the public interests which they represent are particularly vulnerable
to misuse, fraud and confusion with respect to their identities on the
Internet. </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
enjoy certain immunities from legal process in order to protect their neutrality
and impartiality from national influence. </font>
<br><font size=3>The names and acronyms of IGOs are protected by international
treaties within the scope of Article 6ter of the Paris Convention for the
Protection of Industrial Property, as further extended by Article 16 of
the Trademark Law Treaty and Article 2 of the WTO Agreement on Trade Related
Aspects of Intellectual Property Rights. As a result, an overwhelming majority
of jurisdictions in the world protect the names and acronyms of IGOs either
by direct application of their treaty obligations or by enacting national
legislation. The governing bodies of some IGOs have also adopted decisions
requesting their Member States to protect the identifiers of those organizations
from unauthorized use. </font>
<br><font size=3>Protection of the names and acronyms of IGOs is also consistent
with ICANN&#8217;s mission, which includes, inter alia, protecting consumers
from abuse in connection with the new gTLD program. Furthermore, ICANN&#8217;s
founding documents require ICANN to carry out its activities in conformity
with relevant principles of international law and applicable international
conventions and to cooperate with relevant international organizations
(Articles of Incorporation, Article 4) and to duly take into account 
and public authorities' recommendations, recognising that public authorities
are responsible for public policy (By-Laws, Article 11). </font>
<br><font size=3><b><i>Recognition and implementation of the principle
<br><font size=3>The ICANN Governmental Advisory Committee (GAC) represents
national governments within the ICANN governance structure. The GAC has
endorsed special protections for IGO names and acronyms on several occasions,
most recently in its Beijing Communiqué of April 2013, whereby it acknowledged
that &#8220;IGOs are in an objectively different category to other rights 
that they &#8220;perform an important global public mission with public funds,
[that] they are the creations of government under international law, and
[that] their names and acronyms warrant special protection in an expanded
DNS.&#8221; </font>
<br><font size=3>The full endorsement by the GAC of the principle of IGO
protection actually goes back to its Toronto Communiqué of October 2012,
in which the GAC &#8220;advise[d] the ICANN Board that: in the public interest,
implementation of such protection [of the names and acronyms of 
Organizations (IGOs)] at the second level must be accomplished prior to
the delegation of any new gTLDs, and in future rounds of gTLDs, at the
second and top level&#8221;. </font>
<br><font size=3>On this basis, the GAC and IGOs actively worked together
to develop a set of objective criteria for protection and the corresponding
list of protected IGO names and acronyms. </font>
<br><font size=3>The ICANN Board expressly recognized the joint effort
of the GAC and IGOs in its response to the GAC Toronto Communiqué in January
2013, by requesting that the GAC provide a list of protected IGO names
and acronyms, for inclusion in the Reserved Names list. The GAC Chair submitted
the GAC consensus criteria and list to the Board on 22 March 2013. </font>
<br><font size=3><b><i>Solutions to remaining implementation issues 
<br><font size=3>On 1 April 2013, the Board, responding to the 22 March
submission from the GAC, requested clarification of the following specific
implementation issues: </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
to determine the languages in which IGO names and acronyms would be protected;
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
the list of protected IGO names and acronyms would be updated when necessary;
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
to address in the context of second level domain name registrations, potential
&#8220;competing claims&#8221; by other rights holders to the use of a protected
IGO acronym. </font>
<br><font size=3>In response to these queries, the IGO Coalition produced
a paper &#8220;Protection of IGO Names and Acronyms in New gTLDs - Response
to the implementation issues raised by the ICANN Board&#8221; which was 
on 21 June 2013 to the GAC, which subsequently transmitted it to the Board
New gTLD Program Committee (NGPC). In this paper, IGOs devised objective,
realistic and cost-neutral solutions to resolve each of the above-mentioned
issues as follows: </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
names and acronyms would be protected in up to two languages, as communicated
by the concerned IGOs to the Board, via the GAC, by a set date. </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
list would be reviewed prior to delegation of any domains in a subsequent
new gTLD round, or every three years, whichever is earlier. A simple request
would be addressed by any concerned IGO or GAC member to the GAC, who would
review the request on the basis of the agreed criteria for protection of
IGOs and advise the Board accordingly. </font>
<p><font size=3 face="Wingdings">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</font><font 
expressly undertake not to object to the second-level registration of their
protected acronyms by rights holders acting in good faith where there is
no risk of confusion. A specific co-existence mechanism is detailed in
the paper, which puts the onus on the relevant IGO to react in a timely
manner and further provides an option for review of any objections by neutral
third parties. </font>
<br><font size=3><b><i>Latest developments and final considerations 
<br><font size=3>In respective letters dated 6 June 2013 in response to
the GAC Beijing Communiqué, both the ICANN Board and the NGPC proposed
that a small number of NGPC members and ICANN staff begin a dialogue with
the GAC on outstanding implementation issues with respect to the GAC advice
on IGO protection. </font>
<br><font size=3>Against the above background, IGOs trust and expect that
this dialogue will focus on and give due consideration to the pragmatic
mechanism proposed by IGOs to tackle the remaining implementation issues,
in particular potential conflicts of identifiers between those of IGOs
and other rights holders (noting that this requirement has not been asked
from or offered by any other reserved identifiers). </font>
<br><font size=3>Still, IGOs cannot help but be concerned by the resolution
recently passed by the NGPC on 2 July 2013, prior to holding any discussion
with the GAC and IGOs as previously proposed, in which the NGPC for the
first time suggested to protect only IGO full names if the discussion regarding
implementation measures for the protection of IGO acronyms is not rapidly
finalised. </font>
<br><font size=3>The principle of protection of IGO identifiers has clearly
been recognized by the GAC and by the Board as a priority in the DNS and,
at this stage, the dialogue should focus on how such protection can best
be implemented (not on whether both IGO full names and acronyms should
be protected). To consider otherwise, would be to reject the GAC&#8217;s clear
and repeated public policy advice, would ignore the Board&#8217;s previous 
thereto, and indeed be contrary to ICANN&#8217;s own By-laws which require it
to take actions which benefit the public interest and to give due consideration
to governments&#8217; positions on matters of public policy. </font>
<br><font size=3>There can be no possible justification for limiting protections
to IGO full names, particularly when a vast majority of IGOs are far better
known by their acronyms. These acronyms are a quintessential part of the
visibility and functions of our institutions and of the trust that our
Member States, other stakeholders and the general public place in our activities
and products. As such, and as has been demonstrated on various occasions
in various ICANN fora, IGO acronyms are more often subject to cyber squatting
and other domain name abuses than full names. Fraudulent schemes typically
use the commonly-known acronyms of IGOs, for example &#8220;UNICEF,&#8221; 
or &#8220;IMF,&#8221; rather than the full legal names. Therefore, limitation of
protection only to full names would effectively defeat the very purpose
of the envisaged protection and would carry a real cost for vital public
missions, especially when campaigns for education and funding are today
heavily reliant on the Internet. </font>
<br><font size=3>IGO acronyms must be protected, regardless of how 
some of them also might be. Instead of considering denying protection to
IGO acronyms, ICANN bodies should rather look to implementation of reasonable
co-existence measures, as timely proposed by IGOs themselves, which would
allow for registration and use of IGO acronyms by other bona fide rights
holders where appropriate. </font>
<br><font size=3>Protection for IGO identifiers (names and acronyms) in
the DNS remains a critical issue. IGOs will continue to respond to good-faith
comments and queries and are ready to work with the GAC, the NGPC and the
Board in order to work out the practical implementation issues for IGO
protection, provided that the aim of the exercise is and remains the 
of appropriate protective measures for both the names and acronyms of IGOs
and not re-opening an issue of global public policy which has been long
settled. </font>
<div align=right><font size=3>[end of document] </font></div>

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