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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Stephane,

It may be just me, but I would appreciate it if you could briefly clarify your 
points. To assist in that, could you respond to the following without providing 
your rationale because I have already read it.  I simply want to make sure I am 
clear on what your main points are.

Regarding your item (1):

·        Are you simply saying that the request of the General Counsel should 
include both the top and second levels?

·        If you are saying more than that, please identify what other points 
you are making.

Regarding your item (2):

·        How does your position differ from what is in Part 6 of Specification 
5 in the revised version of the base New gTLD Registry agreement that is 
currently posted for public comment?  (The link to the document can be found at 
the bottom of 
http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm .)

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of Stephane Hankins
Sent: Friday, February 08, 2013 10:52 AM
To: Thomas Rickert; gnso-igo-ingo@xxxxxxxxx
Cc: Christopher RASSI; "Debra.Hughes@redcross.org1"@icrc.org; 
"catherine.gribbin@xxxxxxxxxxx"@icrc.org; Christopher Lamb; Gary Brown
Subject: [gnso-igo-ingo] Protection of the Red Cross, Red Crescent and related 
designations

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<mailto:christophe.lanord@xxxxxxxx>

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