[gnso-igo-ingo] RE: Qualification Criteria - Report

["Claudia MACMASTER TAMARIT" <MACMASTER@xxxxxxx>]

Hi all,

Thanks for these comments;  they highlight the work we have now as a Group to 
supplement and edit the current draft of criteria so that they form an 
objective basis for eligibility for special protection.

Of course, we should keep in mind the purpose (we may identify) of granting 
special protection.  If the purpose of granting special protection is to help 
protect international organizations dedicated to serving a global community 
from the risk of abuse of their legally protected names/acronyms/designations 
with the expansion of top-levels, then we need to define criteria commensurate 
to that purpose.

I agree that by its nature this process will include some organizations and not 
others.  (You'll note that I deleted in my previous email the comments 
attributed to me because they were inaccurate and reductive.)  My concern is 
only that we do not exclude international organizations with global reach and 
service on the basis of them not being specifically mentioned by name in a 
treaty (especially when they may receive protections flowing from treaties).  
Such a distinction does not seem to my mind to be commensurate with the purpose 
for granting special protection.  I am also concerned with tailoring the 
criteria so that one or two applicants are guaranteed eligibility instead of 
identifying criteria on legal and objective bases that reflect the purpose of 
granting special protections.

No doubt there is some line-drawing to be done, but this must be done on legal 
and objective bases.  And as for the difficult task of quantifying, we can be 
reminded that numbers may serve as presumptions that can be balanced when 
evaluating eligibility.  We've suggested criteria with the intention to set up 
some benchmarks to identify a limited group of international organizations with 
global reach and extraordinary public service that face the risk of abuse of 
their names in the upcoming expansion of the DNS.

We put it to the group to improve, complement, and identify eligibility 
criteria with these principles in mind.  And of course, to not neglect its duty 
to be mindful that our suggested criteria and our eventual recommendation 
should be based in and comply with law.

Sincerely,
Claudia


From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx]
Sent: 2013-02-01 01:21
To: Kiran Malancharuvil; gnso-igo-ingo@xxxxxxxxx
Cc: Claudia MACMASTER TAMARIT; Jim Bikoff; David Heasley; Thomas Rickert; 
mail@xxxxxxxxxxxxx
Subject: RE: Qualification Criteria - Report

Please see my personal comments and questions inserted in the message below.

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx]<mailto:[mailto:owner-gnso-igo-ingo@xxxxxxxxx]>
 On Behalf Of Kiran Malancharuvil
Sent: Wednesday, January 30, 2013 9:20 AM
To: gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Cc: MACMASTER@xxxxxxx<mailto:MACMASTER@xxxxxxx>; Jim Bikoff; David Heasley; 
Thomas Rickert; mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>
Subject: [gnso-igo-ingo] Qualification Criteria - Report
Importance: High


Dear Thomas and all:

After some discussion amongst the Qualification Criteria group members that 
have proposed criteria for prioritization and short-listing, we present the 
following prioritized criteria for further discussion amongst the group 
members.  There remain some significantly diverging views amongst the group 
members.  To avoid misrepresentation, the author of each viewpoint is stated, 
along with commentary.

Claudia MacMaster Tamarit (ISO):

[Gomes, Chuck] Claudia - Is the intent that all six of the following 
Qualifications would be required?

  1.   Existence of national laws or treaties that prohibit the unauthorized 
use of the words/designations in question;[Gomes, Chuck]  The New gTLD PDP WG 
made a conscious decision to focus on international laws in contrast to 
national laws because of the international nature of gTLDs, so I have a concern 
about the way this is worded.  Do you mean the existence of international 
treaties that are adopted by multiple national jurisdictions?

  1.  Status of the international organization as a non-profit institution;

  1.  Membership (number of member countries in the international organization, 
including percentage of governmental/public members) to be weighed as a part of 
a multi-factored analysis where numbers may be considered flexible benchmarks, 
e.g., over 50 countries or representational 25% of the world's population, 
etc.);[Gomes, Chuck]  As you have heard me say many times, the New gTLD PDP WG 
discouraged subjective criteria.  It would have to be a subjective decision to 
determine these qualifications: How many member countries are required? What 
percentage of governmental/public members is needed?  What percent of the 
world's population is required?  Where do we draw the lines?

  1.  Organizational mandate for international public service (e.g., Statutes, 
Bylaws, Treaty, etc.);[Gomes, Chuck]  What is an organizational mandate? What 
happens if an organizational mandate is not being fulfilled?  Who would 
determine that and how?  What definition of public service do we use?

  1.  Work/serve on international level: Number of countries in which the 
international organization has operations or provides services and/or products; 
Nature and extent of collaborations with governments and other international 
organizations (again, to be weighed in a multi-factored analysis);[Gomes, 
Chuck]  In how many countries would an organization have to operate or serve?  
This would require a subjective decision.

  1.  Engage individuals globally: Nature and impact of work, services and/or 
products on an international level in regards to communities, industries, etc. 
[Gomes, Chuck]  To me this qualification is extremely subjective.

**NOTE: The group agreed to strike the previously proposed criteria "Internet 
presence (e.g., at least 1 domain name)" from the prioritized short-list.

IOC Commentary on ISO Proposed Criteria

We continue to believe that the following criteria is over-inclusive, and some 
criterion run the risk of being arbitrary and subjective.  This is particularly 
true with (2)-(6).  While these criteria are useful as justification for 
protection, the IOC proposes that they should be used as secondary 
considerations.  For example, an organization must first demonstrate that they 
are the subject of special protection which prohibits the unauthorized use of 
the words in question and then demonstrate that they are an international 
not-for-profit organization which serves the international public good.  
[Gomes, Chuck]  As can be seen in my comments above, I believe that 'arbitrary 
and subjective' criteria go counter to the intent of the GNSO New gTLD 
recommendations so I agree with the IOC comments here.

With regard to criteria (1) above, national laws should refer to special sui 
generis legislation and not to multi-national trademark protection (although an 
organization with sui generis legislation can also have multi-national 
trademark protection). As previously discussed in this Working Group, the 
Reserved Names Working Group already addressed special protection for trademark 
holders in general, but did not address the specific cases of those 
organizations protected by treaty and/or sui generis legislation.


IOC:


1.      National laws and/or treaties that prohibit the unauthorized use of the 
words/designations in question

2.      Not-for-profit status
 [Gomes, Chuck]  These two criteria are objective and relatively easy to 
measure if we assume that treaties are worded clearly.  I have a concern about 
focusing on just 'national laws' for the same reason I stated above, i.e., the 
New gTLD PDP WG made a conscious decision to focus on international laws in 
contrast to national laws because of the international nature of gTLDs.  So I 
would change 'and/or' to 'and'.

Claudia MacMaster Tamarit (ISO) Commentary on IOC Proposed Criteria (Note: If 
we misrepresented anything you said, please correct, subtract or add any 
commentary)

The group should not implement protections that are discriminatory to some 
organizations over others.  [Gomes, Chuck] Aren't all criteria by definition 
discriminatory?  Even 'first come, first served' is discriminatory; it 
discriminates against those who are not active in ICANN.  I think it would be 
helpful if you clarified what you mean.

Multi-national trademark protection is sufficient to satisfy the "protection by 
national law" criterion.[Gomes, Chuck]  Like I said earlier, I don't think 
protection by national law is a satisfactory criterion for gTLDs that are 
international in scope.  Which nations' laws would we use?  Restricting 
qualification to those organizations that are the exclusive subject of National 
Law or Treaty is discriminatory.  [Gomes, Chuck] The only way not to 
discriminate is to protect all organizations; that doesn't work.  Please 
explain.


We hope this is helpful to the group in furthering our discussion about 
Qualification Criteria.

We look forward to tomorrow's call.

Thank you,

Jim Bikoff, David Heasley and Kiran Malancharuvil

Kiran J. Malancharuvil
Silverberg, Goldman & Bikoff, L.L.P.
Georgetown Place
1101 30th Street NW, Suite 120
Washington, DC 20007
(202) 944-3307 - office
(619) 972-7810 - mobile
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