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

[Avri Doria <avri@xxxxxxx>]

Hi,

I can agree that maybe this will be the case.  The beauty of the PDP process is 
that it allows the community to explore the issues completely and come to a 
multistakeholder decision on the proper course to follow.

Certainly the GNSO has the authority to decide the policy issues in our 
charter, and perhaps we will find relevant objective criteria appropriate for 
deciding those issues.

avri

On 6 Dec 2012, at 17:16, Claudia MACMASTER TAMARIT wrote:

> Dear Ricardo and All,
>  
> I strongly agree that, as you say, the “protection of INGO names does not 
> seem to follow strictly objective parameters for that whole category as 
> such,” and “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.” 
>  
> This is fundamental.
>  
> Thanks,
> Claudia
>  
> From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
> Behalf Of GUILHERME ricardo
> Sent: 2012-12-05 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