RE: [gnso-igo-ingo] Criteria and SG-C Input

["Roache-Turner, David" <david.roacheturner@xxxxxxxx>]

I wish to fully second these important points made by Ricardo below.  Objective 
criteria, taking appropriate account of legal norms, and remaining cognizant of 
other relevant work already being undertaken within ICANN, are all aspects we 
need to be focusing on.  We should also avoid where possible (especially in 
what is intended to be an expedited process) re-inventing any wheels, and try 
to build where we can on existing expertise and advice at our disposal - 
including the advice recently issued by the GAC, and the resolution from the 
Board, both of which should be appropriately referenced in our continuing work. 
 Both of these are highly relevant imo, whatever this working group's ultimate 
recommendations may be.

With best regards,
David

________________________________
From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of GUILHERME ricardo
Sent: mercredi, 5. décembre 2012 17:29
To: Thomas Rickert; gnso-igo-ingo@xxxxxxxxx
Subject: RE: [gnso-igo-ingo] Criteria and SG-C Input


Dear Thomas and All,



>From an IGO perspective, and in order to assist fair, balanced and objective 
>WG deliberations on the issue of protection of the names and acronyms of IGOs, 
>we believe it is important to re-emphasize that (especially in order for any 
>recommendations of this group on IGO protection to have a credible foundation) 
>we must, collectively, take appropriate account of the following:



*             IGOs are in fact protected under international and domestic laws 
in a way which differs in many key respects from the protections afforded at 
law to non-IGO trademark owners.  For example, the names and acronyms of IGOs 
benefit from certain forms of preventive protection under international law 
against unauthorized use and registration, which is then incorporated (either 
directly or through specific domestic statutes) into the national laws of 
countries.  Such protection both recognizes the international intergovernmental 
nature of IGOs, and that it is not practicable for such organizations to submit 
to the jurisdiction of any one national legal system for purposes of enforcing 
rights in IGO names and acronyms which may be subject to improper use or abuse 
(needless to say, cases of abuses of their names and acronyms on the Internet 
have already been widely reported and documented by IGOs). The legal and public 
policy foundations of this IGO protection are succinctly explained, for 
example, in the letter sent by legal counsel of several IGOs to ICANN as well 
as the common position paper from IGOs, copies of which are attached for 
reference.



*             Moreover, IGOs have a public mission and are funded by public 
money, which is ultimately derived from taxpayers.  Thus, any abuse of IGO 
names and acronyms within the domain name system which must be remedied via 
insufficient fee-based curative (rather than preventive) mechanisms comes at a 
cost to the public missions of IGOs, which is likely to be prohibitive in a 
vastly expanded domain name system.  This was a point further explained in a 
presentation given by the OECD Legal Counsel on behalf of IGOs in Prague.



*             The principal existing rights protection mechanism currently 
available to trademark owners within the Domain Name System to address abuse at 
the second level is the UDRP, which does not provide protection for IGOs 
(although IGOs have been seeking IGO-specific protection from the ICANN 
community for years).



*             Envisaged rights protection mechanisms for new gTLDs might 
provide some limited protection for IGOs (for example, a certain subset of IGOs 
would have standing to bring a Legal Rights Objection against a new gTLD 
applicant).  However, the basic problem with all such mechanisms from an IGO 
perspective is that they are curative rather than preventive in nature (in 
contrast to the legal basis of IGO protection of names and acronyms, which is 
designed to be preventive). In addition, they are fee-based (effectively 
requiring IGOs to divert public funds to access) and may infringe on the 
privileges and immunities of IGOs (particularly in terms of immunity from 
domestic jurisdiction and executive measures) as accorded by international 
treaties and domestic statutes. The standing requirement for mechanisms such as 
the LRO are also problematic for many IGOs, because these are linked to 
satisfaction of existing criteria for registration of ".int" domains, and thus 
may exclude certain organizations (such as UNICEF or UNAIDS) as well as certain 
permanent programs established by IGOs, even if these also fall under the 
protective umbrella of the aforementioned international treaties and domestic 
statutes (this is similar to the arguments presented by the RCRC movement, in 
the sense that protection is not only limited to the names and acronyms of 
IGOs, but also to some of their permanent programs).



*             Thus, the basic problem IGOs are seeking to address in this GNSO 
process  - if indeed any recommendations would be judged necessary and be 
capable of achieving the necessary consensus among participants in this group, 
taking due account of other recently expressed views and discussed developments 
within other ICANN fora - is that:



Although the names and acronyms of IGOs are the subject of preventive 
protection under international and domestic laws, no equivalent protection for 
is provided for by ICANN as a matter of policy.



This should be regarded as problematic for a not-for-profit, California-based 
company, which has just approved a massive expansion of the domain name system 
which it is charged to technically administer, in which expanded scope for 
domain name abuse is self-evident.



*             It is important to bear in mind that ICANN does not operate in a 
legal vacuum, and that any policy ICANN would adopt on IGOs (or indeed INGOs) 
must be established on an objective and legally-consistent basis. Needless to 
say, this obligation is enshrined in the ICANN Articles of Incorporation in the 
sense that it "shall operate for the benefit of the Internet community as a 
whole, carrying out its activities in conformity with relevant principles of 
international law and applicable international conventions and local law." 
Furthermore, the ICANN Bylaws also recognize, as part of the organization's 
core values, that "governments and public authorities are responsible for 
public policy" and that it shall duly take into account governments' or public 
authorities' recommendations.



*             While the ICANN New gTLD Committee Board resolution [number] 
granting interim preventive protection for certain IGOs in connection with new 
gTLDs does envisage further consideration of this issue by this working group, 
it is also appropriate that the Board's stated reasons and precedent set by 
this resolution and its grant of interim protection for some IGOs be kept 
carefully in mind as a basis for the group's further discussion.  This is 
especially so given the strong opposition apparently already voiced by some 
participants in this group, before we have even finished scoping.  It is 
important that, in order for this group's work would be appropriately informed 
and fruitful, that participants keep an open mind and an objective approach in 
line with existing binding international legal statutes.  As a matter of 
working group process, and given the strong views already expressed, it may 
also be useful to clarify the degree of consensus that would in practice be 
required under the relevant by-laws for any recommendation to lift such interim 
protection, and to consider this in light of current working group composition.



*             The relationship of the current working group process to the 
clear GAC advice issued to the Board via its Toronto Communiqué and as 
reflected in the recent GAC letter to the GNSO, and any ultimate steps taken by 
the Board in light of further advice from the GAC or GNSO (if this would differ 
from the GAC), apparently remains to be clarified.  In that sense, it may be 
seen as somewhat problematic if not premature to continue our working group 
deliberations while such clarity remains outstanding, and the status of any 
resulting recommendations from this group (in which it is already apparent we 
will all need to invest considerably, at apparently quite inconvenient times 
for some) would appear to remain correspondingly unclear.  However, and being 
mindful of the Chair's advice for our work in this group to proceed apace in 
any event, it is nevertheless important for this WG to give appropriate weight 
and regard to the information and advice already issued by the GAC on the issue 
of IGO protection, and to remain conscious of work which may be ongoing within 
the GAC on this issue (particularly bearing in mind that, as per the ICANN 
By-laws, the GAC's advice to the Board "on public policy matters shall be duly 
taken into account, both in the formulation and adoption of policies").  While 
this WG may naturally need to make up its own collective mind about the weight 
to be attributed to such clear advice by the governments of the world as 
represented in the GAC, might we suggest that one useful and potentially 
efficient starting point for the WG could be to consider whether there are any 
valid reasons why the GAC advice itself could not form one useful baseline for 
our further deliberations within this group?



*             In other words, what (if any) are the reasons why our group could 
not commence our deliberations on the best way forward based on our considered 
analysis of the GAC's advice?  If there would be valid reasons for not doing 
so, that would be one aspect to be studied; but if not, it would seem somewhat 
odd if this WG were to somehow simply set such clear advice aside from the 
outset without considered reasons for doing so.



*             On the other hand, and as far as international non-governmental 
organizations are concerned, we continue to be concerned by the fact that any 
discussion surrounding the protection of INGO names does not seem to follow 
strictly objective parameters for that whole category as such. Instead, the WG 
continues to refer to two specific organizations/movements as if they were one 
and the same, EVEN when we all know that the legal grounds for protection of 
one movement are clearly distinct from those allegedly relating to the other 
named organization (i.e., a number of designations protected by the Geneva 
Convention as opposed to none in the Nairobi Treaty). It is in this specific 
regard, where NO international or domestic legal statutes already 
regulate/determine the protection of certain names and acronyms, that the GNSO 
has the legitimacy to perhaps propose policy that may lead to certain 
additional protection applicable to INGOs on the basis of other objective 
criteria.



So as previously promised, please find attached again the UPU's submission of 
September 2012, which in our view is absolutely necessary to clarify a great 
number of flawed considerations/conclusions contained in the Unredacted Paper 
and the Final Issues Report referred to by some WG participants, and to duly 
inform any advice to be provided by the WG on this important matter. This, of 
course, is without prejudice to any further UPU and IGO positions that may have 
been expressed after such submission was circulated among the various ICANN 
bodies.



In any event, we look forward to continuing participation in the important work 
of this WG, and remain at your disposal for additional clarification (even 
though I personally will not be able to participate in tonight's call due to a 
severe cold/flu).



With best regards,



Ricardo Guilherme



_______________________________________________________________________________________________





De : owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] De la 
part de Claudia MACMASTER TAMARIT

Envoyé : mercredi 5 décembre 2012 16:42

À : Thomas Rickert; gnso-igo-ingo@xxxxxxxxx

Objet : [gnso-igo-ingo] Criteria and SG-C Input



Dear Thomas and all,



Please find our attached comments to the SG & C input request template.



We cannot overemphasize the need for identifying objective eligibility criteria 
for any proposed special protection of international organization 
names/acronyms.  Privileging some without such criteria would be unacceptable 
for a monopoly operation.



Instead, we would suggest to focus the discussions on identifying the criteria 
which qualify an international organization as being in a particularly 
vulnerable position vis-à-vis abuse of their name/acronym in domain names as 
new gTLDs roll out and why such protection is needed.  Additionally, we would 
suggest that some may be more vulnerable in regards to first and/or second 
level registrations, and should consider these separately.



To help focus the discussions on objective criteria to be uniformly applied, we 
include the below discussion draft criteria:



(Draft) Objective Criteria for inclusion of International Organizations for

Protection (Reserved List) in First and Second Level TLDs



- Number of member countries in the international organization;

- Percentage of governmental or public members in the international 
organization;

- Number of countries in which the international organization has operations or 
provides services and/or products;

- Nature and impact of work, services and/or products on an international level;

- Nature and extent of collaborations with governments and other international 
organizations;

- Status of international organization under international and/or domestic law;

- Duration of international organization's existence;

- Status of the international organization as a non-profit institution and/or 
operating in the public interest;

- Recognition/use of name or acronym with/by the international organization;

- Number and extent of existing abusive domain name registrations relating to 
the name or acronym.





Sincerely,

Claudia



Claudia MacMaster Tamarit, Esq.

Intellectual Property Rights Manager

(ISO) International Organization for Standardization

www.iso.org



1, ch de la Voie-Creuse

P.O. Box 56

CH-1211 Geneva 20

Switzerland



Tel. + 41 22 749 0441

Fax. + 41 22 733 3430

e-mail macmaster@xxxxxxx





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