Comment from the Universal Postal Union

[GUILHERME ricardo <ricardo.GUILHERME@xxxxxxx>]

As a specialized agency of the United Nations system, the UPU also fully 
supports the comments posted by the United Nations Office of Legal Affairs 
(published by ICANN on 12 December 2013).

In that regard, the UPU can only concur with the views expressed by other IGOs 
that the recent IGO-INGO Identifier Protection recommendations adopted by the 
GNSO Council are not only unfortunate; they fail to address basic issues 
exhaustively communicated to ICANN on this topic over the last years; moreover, 
despite the participation of several IGOs in the aforementioned process, it is 
indeed evident that the entire PDP process served only to confirm a number of 
foregone conclusions on the basis of a policy-making process that was highly 
skewed towards commercial interests.

It must be emphasized that, other than on the basis of flawed 
commercial/private concerns associated with a very limited number of acronyms, 
there is no possible objective reason for making such an ad hoc policy 
distinction between full names and acronyms, particularly since:

-       The vast majority of IGOs are far better known by their acronyms than 
their full names (as an example, it is simply ludicrous to imagine a situation 
where ICANN "allows" for the protection of 
"unitednationsconferenceontradeanddevelopment" while overlooking exactly the 
same kind of protection for "unctad";
-       The demonstrated legal basis for protection of IGO names and acronyms 
(be it under international law or dozens/hundreds of domestic statutes) neither 
establishes nor supports such an artificial differentiation between IGO names 
and acronyms;
-       Evidence of various forms of abuse of IGO acronyms (including without 
limitation cybersquatting and illegitimate monetization efforts) has been 
clearly demonstrated by IGOs. As expressed by the United Nations Office of 
Legal Affairs and others, such a limitation of protection to full names would 
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 astonishing that such considerations in no way motivated the GNSO 
decision;
-        IGOs have repeatedly expressed their willingness to explore solutions 
aimed at pre-empting such third-party abuse of their acronyms, particularly in 
order to prevent user confusion and the resulting loss of confidence in both 
IGOs and the DNS.

Needless to say, the UPU equally reiterates the points made by the United 
Nations Office of Legal Affairs on the clear disregard for legal and public 
policy considerations and the anomalous characterization of "consensus" 
throughout the whole GNSO policy-making process, as well as the utter contempt 
for the "core values" contained in the ICANN Board of Director's Code of 
Conduct, particularly in terms of "[e]mploying 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."

The same concerns also apply to the legally-flawed and insufficient proposals 
to allow IGOs access to the ordinary ICANN Trademark Clearinghouse (TMCH), the 
URS and the UDRP, mainly since these are woefully insufficient on several 
grounds, and particularly since the preventative (as opposed to merely 
curative) factor of protection for acronyms has never been addressed in those 
proposed mechanisms.

Once more, ICANN's founding documents (notably section 4 of its Articles of 
Incorporation) 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, recognizing that public 
authorities are responsible for public policy - this is not an option; it is a 
basic statutory duty applicable to ICANN in all its activities.

Furthermore, the GAC has 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. This is also in line with the essential GAC 
attribution established under article XI of the ICANN Bylaws to "consider and 
provide advice on the activities of ICANN as they relate to concerns of 
governments, particularly matters where there may be an interaction between 
ICANN's policies and various laws and international agreements or where they 
may affect public policy issues." - ultimately, IGOs are a corollary of the 
will of States as expressed by agreements governed by international law: their 
establishment and functioning are simply a logical consequence of their status 
as vehicles for implementation of those intergovernmental objectives.

In conclusion, 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. The UPU thus sincerely hopes that the ICANN Board will 
not follow this same route - instead, it should adopt a decision which is fully 
in line with the critical elements referred to herein.

With best regards,

Ricardo Guilherme Filho, LL.M., MILE
Legal Adviser
Legal Affairs Directorate

International Bureau
Weltpoststrasse 4
Case postale
3000 BERNE 15
SWITZERLAND

T +41 31 350 35 25
F +41 31 350 31 10

www.upu.int<http://www.upu.int/>

 [cid:image001.jpg@01CC5820.BAC7B630]

 [cid:image002.jpg@01CC5820.BAC7B630]

Attachment: Picture (Device Independent Bitmap) 3.jpg
Description: Picture (Device Independent Bitmap) 3.jpg

Attachment: Picture (Device Independent Bitmap) 4.jpg
Description: Picture (Device Independent Bitmap) 4.jpg