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

[Thomas Rickert <rickert@xxxxxxxxxxx>]

Stéphane,
thanks for your comments. 

Adding to Chuck's questions, let me briefly say that you are touching upon the 
very question that the group has been discussing controversially over the last 
few meetings. There are those (obviously including yourself) that state that 
ICANN is required to take action and protect certain names "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" as you put it. 

There are others that state that the fact that certain registrations could 
constitute an infringement of a statute, treaty or other applicable law is not 
sufficient to constitute such obligation for ICANN, unless it were illegal for 
ICANN to allow for such registrations to take place. 

In other words, if it is "only" illegal for the respective applicant (in cases 
of TLDs) or registrant (in cases of a Second Level Domain), but not for ICANN, 
Registries or Registrars, then it would not constitute an obligation for ICANN.
If it were illegal for ICANN, Registries or Registrars to allow such 
registrations, then it would be a matter for the ICANN compliance department 
and not primarily a policy matter.

[I know this summary is too brief to cover all aspects]

We as a group will need to work on this more.

Thanks,
Thomas



Am 09.02.2013 um 16:10 schrieb "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 
> ofhttp://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
> 
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