Comments from the OECD

[<Legal@xxxxxxxx>]

Comments from the OECD:



The OECD fully supports the comments posted by the United Nations Office of 
Legal Affairs on 12 December 2013.



The recent IGO-INGO Identifier Protection recommendations adopted by the GNSO 
Council are unfortunate, particularly in the current climate when serious 
questions are being voiced on the legitimacy and sustainability of existing 
Internet governance arrangements, with criticisms over the dominant influence 
of a few actors representing certain commercial interests rather than striving 
towards truly inclusive multi-stakeholder governance.



The GNSO Council recommendations, while accepting protections for full names at 
both the top and second levels, refuse such protections for IGO acronyms.   It 
is utterly surprising that ICANN bodies would make decisions affecting global 
public policy matters without taking into account the views of those defending 
such public policy matters.



Other than on the basis of flawed commercial concerns, there is no possible 
reason for making a distinction between full names and acronyms.   In fact, it 
is well known by all that a vast majority of IGOs are far better known by their 
acronyms than their full names.  In the context of the DNS, it defies basic 
logic to refuse protection for the commonly known acronyms and instead protect 
the often lengthy full names, which is meaningless for most of us (including 
"ICANN" itself) and would thus amount to giving IGOs no protection at all. 
Experience bears this out, as IGO acronyms have often fallen victim to 
cybersquatting and other forms of abuse in the DNS. Limitation of protection 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.  As ICANN's mission includes, inter alia, protecting consumers from 
abuse in connection with the new gTLD program, it is surprising that such 
considerations in no way motivated the GNSO decision.



In any event, at the second level, reasonable co-existence principles and a 
simple and cost-neutral process could be devised, so a blanket refusal to 
protect IGO acronyms was not warranted.  If there was a will, the PDP could 
have explored such mechanisms.  IGOs have indicated on many occasions that our 
intention is not to prevent in absolute terms good faith use of our acronyms in 
the DNS by third parties. Rather, IGOs are looking for solutions to pre-empt 
third-party abuse of our acronyms to prevent user confusion and the resulting 
loss of confidence in both IGOs and the DNS.



Instead, the entire PDP process served only to confirm conclusions which were 
predetermined from the start.  Fact, law, public policy considerations and even 
logic and reason were ignored during the process and the so called "consensus" 
against IGO acronym protections was reached despite fierce opposition from 
participating IGOs.   It is certainly at odds with the very concept of 
consensus to allow for a decision to be adopted when strong dissent is clearly 
and decisively voiced by a number of stakeholders. We would simply like to 
recall one of the "core values" ICANN Board of Director's Code of Conduct: "7.  
Employing open and transparent policy development mechanisms that (i) promote 
well-informed decisions based on expert advice, and (ii) ensure that those 
entities most affected can assist in the policy development process."



Allowing IGOs access to the Trademark Clearinghouse is woefully insufficient, 
both because the time-limited (90-day) duration falls short of any effective 
protection or even notification system and because of considerations regarding 
using public funds for such processes, which have not been addressed.



As to the URS and the UDRP, the GNSO acknowledges these mechanisms to be 
inadequate for IGOs due notably to immunities, but also because of standing and 
cost considerations.  Whether initiating a new PDP would develop mechanisms 
adequate for IGOs is quite uncertain, but what is certain is that such a 
lengthy undertaking would not provide a timely solution.  We should also point 
out that the URS and the UDRP would remain curative mechanisms which would thus 
not prevent the harm from occurring.  In a situation of crisis, where cases of 
abuse are generally on the rise, an organisation like UNICEF cannot wait for 
the results of a dispute resolution process before stopping fraud involving its 
identifier.



It is important to recall that ICANN's founding documents require ICANN to 
carry out its activities in conformity with relevant principles of 
international law and applicable international conventions, to cooperate with 
relevant IGOs and to duly take into account governments' and public 
authorities' recommendations, recognising that public authorities are 
responsible for public policy.



The GAC repeatedly advised that IGOs, as entities created by governments under 
public international law, are in an objectively different category to other 
rights holders and that there is a prevailing global public interest to provide 
special preventative protections for IGO names and acronyms at both the top and 
second levels.



The GNSO recommendations fail completely to take into account public policy 
concerns, the unique status and needs of IGOs and longstanding and repeated GAC 
advice.  We sincerely hope that the ICANN Board will not follow this same route.