[gnso-igo-ingo] Protection of the Red Cross, Red Crescent and related designations

[Stephane Hankins <shankins@xxxxxxxx>]

Dear Thomas, dear all, 

Further to yesterday's Conference Call, we would like to take this 
opportunity to (1) comment on the first item on yesterday's agenda (namely 
the update and interpretation of the Legal Review request submitted to 
ICANN's Legal Counsel), as well as to (2) reiterate to the Working Group 
our position and recommendation on the modalities of protection of the Red 
Cross, Red Crescent and Red Crystal designations and related names, which 
we consider would best conform to the protection afforded to these 
designations under international law. 

(1) With regard to the terms of the Legal Review request and to past 
discussions held within the Group on this matter, we remain somewhat 
unclear as to the Group's conclusions. 

As we explained during the Telephone Conference held 10 days ago, it was 
our understanding that the legal question the Legal Counsel would be 
considering was to address not only the existence of any legal obligation 
resting upon a registry or a registrar relating to the registration of the 
name or acronym of an IGO or INGO, but also, and importantly, ICANN's own 
duties in regard to the assignment of the same at the top level (bullet 
point a) of the Legal Review request, as well as to the  registration of 
strings including the designations and names at the second level. As we 
also highlighted at the various times the Legal Question was debated, the 
latter issue is to our mind at least as important as the first. It can 
also, to our mind, be inferred from the terms of the Legal Question 
finally approved when referring, in the paragraph preceding bullet points 
a) and b), to "actions undertaken by or under the authority of ICANN" 
(emphasis added). 

If indeed, the final conclusion of the Legal Counsel is that there does 
exist a jurisdiction in which a statute, treaty or other applicable law 
prohibits the assignment at top level and the registration at the second 
level, would it not beg the question  of, whether or not, ICANN, within 
its statutory role to "perform and oversee functions related to the 
coordination of the Internet domain name system", has itself a duty under 
"any jurisdiction"? We take note for example that under ICANN's Articles 
of Incorporation, "[the Corporation] 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]”. Should this last proposition not be read, in 
consideration of ICANN's role mentioned above, as committing ICANN as an 
organisation not only to abide by or respect international law, but also 
as defining a duty – at least an obligation of means - to ensure that any 
actions incongruent with international law undertaken by or under the 
authority of ICANN – e.g. by stakeholders accredited by ICANN – should 
conform with international law? 

Should the Legal Counsel's final determination be that certain 
designations such as the Red Cross, Red Crescent, and Red Crystal and 
related names are indeed entitled to international protection, should this 
not, by virtue of the aforementioned, require ICANN to refrain from 
assigning these names at the top level? Would it not additionally commit 
ICANN, within its coordination and overseeing functions, to ensure to the 
best of its ability that the protections are respected and implemented at 
the top and second levels? Would it not commit ICANN as an organisation to 
take all feasible and reasonable measures within its authority, such as 
recalling the prohibitions and formally recommending the implementation of 
a reservation, in accordance with the protections afforded under 
international law, to the attention of Registries and Registrars? 

We wanted at least to place this on the table for the Group's 
consideration. It would indeed, to our mind, be regrettable if the final 
advice received from the Legal Counsel did not cover a question which, we 
consider, is of the essence of the call for protections, as well as of any 
future implementation of the protections which we submit are due to the 
Red Cross and Red Crescent names, as well as those of other applicant 
organisations. 

(2) Second, and further to past discussions, including our own recent 
bilateral conversation, we would like to take this opportunity to provide 
here once more a summary of the protections the Red Cross and Red Crescent 
are calling for. Considering that the Group is beginning to explore in 
further detail the terms and modalities of the future protections, we 
believe this might be helpful to the Group in its eventual determination 
on the different groups or clusters of designations under consideration. 

The protection of the Red Cross and Red Crescent designations and names 
should hence cover the following: 
§       Designations and names to be protected at the top and second 
levels should include:
- the Red Cross, Red Crescent, Red Lion and Sun and Red Crystal 
designations in the 6 UN languages, as well as the designations Magen 
David Adom/Red Star of David in English and in Hebrew (as defined in the 
Applicant Guidebook); 

- the full names of the 180 Components of the International Red Cross and 
Red Crescent Movement, i.e. 

- the 188 National Red Cross or Red Crescent Societies in English and in 
the respective official languages of the countries of operation of each 
National Society; 
- the name "International Committee of the Red Cross" and the acronym 
"ICRC" in the 6 UN languages;
- the name "International Federation of Red Cross and Red Crescent 
Societies" and the acronym "IFRC" acronym in the 6 UN languages. 
§       Inclusion of the designations listed above on a "modified reserved 
list" in order to preserve the entitlement of Movement components to 
register the said designations, should they require to do so.
This would be congruent with the provisions of the 1949 Geneva Conventions 
and their Additional Protocols, which foresee an indicative use of the 
designations by the respective components of the International Red Cross 
and Red Crescent Movement. 

The proposition for an eventual appeal procedure to the benefit of 
applicants of a domain name including any of the reserved strings might of 
course remain an option (for example, through a request procedure for a 
letter of non-objection to a pre-defined Red Cross or Red Crescent 
organisation). 
§       Establishment of an effective String Similarity Review at top 
level and, as far as technically possible, at the second level, and thus, 
in due consideration of the express prohibition under international law of 
imitations of the Red Cross and Red Crescent designations and related 
names (a notion which may be assimilated to strings confusingly similar or 
that use the designations).
If this is technically feasible, such a String Similarity Review mechanism 
might usefully be made to cover Strings including reserved key words (such 
as "Red Cross", "Red Crescent", "Red Lion and Sun" and "Red Crystal"). 


We remain available to discuss any of the points described above. 

Best, 

Stéphane J. Hankins
Legal adviser
Cooperation and coordination within the Movement
International Committee of the Red Cross
Tel (direct line): ++0041 22 730 24 19

Christopher M. Rassi
Senior Legal Officer
International Federation of Red Cross and Red Crescent Societies
Chemin des Crêts, 17 | 1209 Petit Saconnex | Geneva | Switzerland
Tel. +41 (0)22 730 4536 | Fax +41 (0)22 733 0395
Email christopher.rassi@xxxxxxxx

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