Re: [gnso-igo-ingo] food for thought - options to be considered

[Avri Doria <avri@xxxxxxxx>]

Hi,

I think this, a TMCH-like mechanism,  is well worth exploring.  It allows for 
prior action without the kinds of prior restraint on expression problems that 
reserved name lists have.

avri

On 23 Jan 2013, at 15:05, Gomes, Chuck wrote:

> Ricardo,
>  
> I find your conclusion, which I copy here for clarity helpful:
>  
> “What could this look like? Here is a very rough sketch:
>  
> - Organizations can have their designations added to a database (such as the 
> TMCH database). Identical match strings will be added after validation.
> - Whenever a registration for an identical match is attempted, eligibility of 
> the registrant will be checked before the domain name is registered. 
> Eligibility is given either if an organization holding that designation is 
> carrying out the registration or if the registrant is registering the domain 
> name legitimately according to the exemption rules, i.e. where use is 
> permitted).
> - Registrations for eligible registrants will be carried out on a first come 
> first served basis.
>  
> Such approach would prevent unauthorized registrations from taking place. At 
> the same time (since registrations are fcfs) there is a level playing field 
> and eligible parties would not necessarily prevail over other legitimate 
> registrants.
>  
> One could even apply such method for the top level (taking into account the 
> question of the applicability of the string similarity review) .”
>  
> Chuck
>  
> From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
> Behalf Of GUILHERME ricardo
> Sent: Wednesday, January 23, 2013 12:30 PM
> To: gnso-igo-ingo@xxxxxxxxx
> Subject: RE: [gnso-igo-ingo] food for thought - options to be considered
>  
> Dear Thomas and All,
>  
> Notwithstanding the fact that most lawyers (like me) indeed enjoy playing the 
> role of "Devil's advocate" (notably for fostering discussion and identifying 
> all possible solutions to a certain problem), it is in our view absolutely 
> essential that any consideration of “options to move forward” objectively 
> reflects AND respects the wide variety of opinions manifested so far.
>  
> In particular, we refer to the diverging views expressed by a substantial 
> portion of this working group which, in due observance of international and 
> national legal statutes, has been incessantly trying to instill strictly 
> objective criteria to ICANN policy discussions that have, so far, 
> unfortunately ignored or disregarded them (at least for the most part). We 
> also take issue with the apparently harmless attempt at establishing or 
> declaring a “consensus” when no such thing has ever existed within this 
> working group, something that naturally cannot be regarded as surprising in 
> the first place (given the extremely diverse interests at stake here).
>  
> In fact, and notwithstanding the obvious difficulties concerning 
> participation of European-based IGOs in conference calls almost invariably 
> organized to satisfy US-centric schedules (despite our requests for AT LEAST 
> some degree of rotation in those schedules), a number of IGO (and if I may 
> say, also some INGO) representatives have been extremely active in conveying 
> their views and adding objective elements to an initiative that would 
> otherwise be regarded as a purely private sector-driven exercise. This 
> comprises numerous comments and suggested written edits to the Excel 
> spreadsheets shared with the group, various attached written submissions (at 
> least in our case) from the UPU and the IGO community at large, as well as 
> oral statements made during those (admittedly few) conference calls that we 
> have been able to attend at 8 or 9 p.m. (Swiss local time).
>  
> Bearing in mind also the history of ICANN, the usual composition of its 
> groups and the interests associated thereto, it would obviously be naïve to 
> expect full agreement with some or most of the considerations put forward by 
> not-for-profit, public good-driven intergovernmental organizations such as 
> ours. Additionally, due to the specific levels of representation and 
> participation within this WG, we also would not dare assume that such 
> considerations would be easily accepted by other participants of the WG.
>  
> However, it is impossible to accept blanket WG statements that there is “no 
> opposition to making the RPMs available to all users of the DNS” – at the 
> very least, we (as part of the wider IGO community) have always expressed our 
> complete opposition to curative mechanisms as a matter of principle for the 
> legal, objective and practical reasons already expressed in various 
> submissions, as well as in the light of the fact that IGOs, which are 
> subjects of international law bound by a specific regime of privileges and 
> immunities, are NOT subject to national jurisdictions and are NOT dependent 
> on trademark registration for the protection of their names and acronyms.
>  
> While also appreciating the efforts undertaken by Alan Greenberg in trying to 
> isolate current cases of undue registrations and/misuse of the names and 
> acronyms of IGOs in the DNS (to which we could 
> addwww.universalpostalunion.com owned by a certain “Fabulous.com Pty Ltd.”, 
> countless cases of spam/scam messages, “UN lottery” schemes, abusive 
> redirections, deep linking practices and attempts to register the name or 
> acronym of the UPU and other IGOs in specific domain names), we have to 
> reiterate, once more that this is not only a matter to be decided on the 
> basis of “identified harm” (even though such harm or attempts associated 
> thereto have been extensively documented and/or explained) or “how important” 
> such a reservation is for IGOs.
>  
> Given our public good missions, any ICANN-authorized possibility for abuse of 
> international/national law provisions is a harm in itself as it may lead to 
> confusion on such mandates, associate IGOs with unauthorized private 
> sector/monetizing activities and pose considerable reputational risks 
> concerning the conduct of those public mandates. Moreover, it is clear that 
> IGOs have already expressed that such reservations are not meant to impair 
> their ability to register those names and acronyms themselves, or perhaps 
> authorize third parties (in very specific cases and subject to the internal 
> regulations of each IGO) to do so.
>  
> Despite the skepticism traditionally expressed by some in the ICANN 
> community, we are, de jure and de facto, international entities established 
> by Member States for the fulfillment of specific public good mandates which 
> are, for the most part if not integrally, funded by public resources that are 
> not only extremely limited in nature but also strictly aimed at certain 
> public good projects and goals (which obviously do not include spending 
> thousands if not millions of USD in protective or corrective against abusive 
> registrations in the DNS). This is a matter of principle whose treatment is 
> not subject to ad hoc market concerns normally applicable to private sector 
> entities.
>  
> In conclusion: from an IGO perspective, (i) the problem to be solved is clear 
> (preventive protection of the names and acronyms of IGOs under international 
> and national law); (ii) the “qualification criteria” (at least in the case of 
> IGOs) are clear as per those laws and should not be subject to arbitrary 
> thresholds such as number of countries or value judgments such as “this IGO 
> is more humanitarian than that”; and (iii) the mechanisms at our disposal 
> have already been indicated (reserved names list), as acknowledged by the 
> ICANN Board and in line with the public policy imperative for preventive 
> protection already recognized by the GAC. In regard to other, 
> non-governmental entities, we can surely continue to extend our support for 
> the development of objective and non-discriminatory criteria as currently 
> being debated by this working group.
>  
> Therefore, we would respectfully request, for reasons of transparency and 
> fairness and in observance of Section IV of the Charter adopted by the GNSO 
> for this group (even if we were to accept ICANN’s interesting definition of 
> “consensus” as a position where “only a small minority disagrees” – is the 
> IGO community plus perhaps a number of INGOs to be deemed as “small”?), that 
> our full remarks and comments on the spreadsheet (and other similar 
> documents) be not deleted (as was the case for our comments on the tab 
> “Nature of the problem”), so as to avoid giving the inaccurate impression 
> that “consensus” was reached on this topic. This request should also apply, 
> of course, to any other “minority views” expressed by other members of the 
> working group.
>  
> Last but not least and as hinted above, we would also like to express our 
> full support for the remarks sent by WIPO earlier today.
>  
> With best regards,
>  
> Ricardo Guilherme
>  
>  
>  
> -----Message d'origine-----
> De : owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] De 
> la part de Thomas Rickert
> Envoyé : mardi 22 janvier 2013 20:55
> À : gnso-igo-ingo@xxxxxxxxx
> Objet : [gnso-igo-ingo] food for thought - options to be considered
>  
>  
> All,
> considering the exchange of thoughts we had on the items of the spreadsheets 
> and the comments received in response to the request for input, I would like 
> to share a few observations with you in preparation of the next call.
>  
> The way I present these may be perceived drastic, but please understand my 
> role as devil's advocate to stimulate a discussion. We need to reduce the 
> number of arguments on the table and discuss options to move forward and I 
> will make some suggestions we can discuss below.
>  
> It appears that many in the community ask for evidence that there is a 
> problem that needs to be fixed. This was emphasized e.g. in the ALAC 
> statement. We have discussed this topic on the basis of the NOTP spreadsheet.
>  
> However, let me try to define where the lack of protection is located that 
> those requesting protections are now seeking:
>  
> There are new RPMs, but these are deemed insufficient because
>  
> I. they cannot be used by some affected parties; II. there are costs 
> associated with RPMs; and III. they are reactive and do not prevent third 
> party registrations from taking place.
>  
>  
> ad I
> I have seen no opposition to making the RPMs available to all users of the 
> DNS (as the RySG put it in their comment).
> Thus, I guess chances would be good to get at least near to consensus on this 
> one.
>  
> ad II
> My impression is that most participants of the working group agreed that 
> granting special protection requires a problem specific to the group of 
> potential beneficiaries of the protections. We would not treat all users 
> equally if we used an argument that also affect other users or user groups to 
> grant specific protections. It appears that the issue of costs hits all those 
> affected by third parties illegitimately using their designations.
>  
> I may be wrong, but I have not seen broad support for the idea of granting 
> special protections because of cost (may it be for the use of RPMs, defensive 
> registrations or administrative costs).
>  
> ad III
> In my view, this is the area our discussions will focus on in the coming 
> weeks.
>  
> I will ask during tomorrow's call whether you agree with this view.
>  
>  
> Talking about item III we need to discuss the following questions in more 
> depth:
>  
> 1. What is the problem is we are trying to solve? What harm shall be 
> prevented?
> 2. What would be the qualification criteria?
> 3. What would a protection mechanism look like?
>  
> ad 1
> Particularly in the ALAC statement there are some criteria mentioned. These 
> seem to include quite subjective factors, particularly when it comes to 
> quantitative elements.
>  
> Alan, you had offered to send some questions / factors to the list that can 
> be used to answer the question of harm. Are you in a position to have those 
> ready for the call tomorrow? That would be most helpful.
>  
> Apart from that, my impression is that almost the only criterion to be used 
> is that global public interest and the mandate of an the organization 
> affected is harmed. If I remember correctly, this was a point made by 
> Stéphane.
>  
> I will ask you tomorrow whether you share the view that we should focus on 
> these points.
>  
> Even if the group chose to accept this as a factor unique to the 
> organizations concerned, we still have to answer the question that this fear 
> of the global public interest and mandate is at danger is real.
>  
> Are there any projections for such harm taking place in new gTLDs (given the 
> fact that we have numerous dotBrands where the risk of harm may be lower)? 
> Any objective criteria, e.g. studies on infringements in new TLDs (e.g. xxx?)?
>  
> ad 2
> As per our charter the minimum requirement is: Protection under treaties and 
> statutes under multiple jurisdictions.
> We can certainly add additional - positive or negative - criteria, but for 
> the time being, let me focus on the above aspects.
>  
> What treaties shall be relevant? What needs to be protected by the treaty? 
> How do we deal with the fact that even protection by treaty is limited and 
> does - in many cases - not prevent certain cases of legitimate use?
>  
> Will the fact that protections are limited in scope stop the group from 
> granting protections entirely or will that be dealt with in the context of 
> exemption procedures?
> Let us assume the group is willing to grant special protections on the basis 
> of a narrowly defined group of qualifying organizations and designations 
> whose eligibility can be checked in an objective manner maybe depending on 
> additional admission requirements (as discussed on the respective 
> spreadsheet). Then we can move to question 3.
>  
> ad 3
> Looking at the Protections spreadsheet, (based on the assumption made above) 
> all existing and new RPMs will be open to the qualifying organizations. 
> Hence, the only option we need to discuss is the option in line 5, which is 
> the modified reserved names list with an exemption procedure.
>  
> What could this look like? Here is a very rough sketch:
>  
> - Organizations can have their designations added to a database (such as the 
> TMCH database). Identical match strings will be added after validation.
> - Whenever a registration for an identical match is attempted, eligibility of 
> the registrant will be checked before the domain name is registered. 
> Eligibility is given either if an organization holding that designation is 
> carrying out the registration or if the registrant is registering the domain 
> name legitimately according to the exemption rules, i.e. where use is 
> permitted).
> - Registrations for eligible registrants will be carried out on a first come 
> first served basis.
>  
> Such approach would prevent unauthorized registrations from taking place. At 
> the same time (since registrations are fcfs) there is a level playing field 
> and eligible parties would not necessarily prevail over other legitimate 
> registrants.
>  
> One could even apply such method for the top level (taking into account the 
> question of the applicability of the string similarity review) .
>  
> Perhaps this helps us getting some ideas of the options to move forward.
>  
> Thanks,
> Thomas
>  
>  
>  
>  
>