RE: [gnso-igo-ingo] Qualification Criteria - common ground?

[<Sam.PALTRIDGE@xxxxxxxx>]

Dear Thomas,

Firstly, thank you (and also to Chuck) for framing these for the group.

On behalf of the OECD, UPU, WIPO, and 40+ other IGOs in coalition, with respect 
to the questions posed in your two attached emails, we thought it would be more 
efficient for the group to make the following collective reply:
Concerning Questions Posed on Qualification Criteria:
On the basis of the two options you present, we would in principle favor option 
A ("Protection of the name and acronym of an organization by virtue of an 
international treaty AND protection in multiple jurisdictions), with the caveat 
that the scope of protection must include both the name and acronym of the 
relevant organization.
Moreover, and as also mentioned in our previous submissions to the group in the 
case of IGOs, the Paris Convention is an international treaty (through its 
Article 6ter), which affords protection to the communicated names and acronyms 
of IGOs, with such protection also given direct effect under national law in 
multiple jurisdictions.

However, the fact that we may support option A here should not be construed as 
disregarding the fact that, in many jurisdictions, ratification of an 
international treaty is not dependent on the enactment of specific domestic 
laws replicating the former; and that notably in the case of IGOs such as the 
OECD, UPU and WIPO, whose names and acronyms are collectively protected under 
international law, there is no reason nor need for them to be specifically 
"named" in such domestic legislation. (Indeed, while certain INGOs may require 
somehow two specific "tiers" of protection exactly since those organizations 
are not subject to the general legal protection accorded under article 6ter of 
the Paris Convention (as is the case for IGOs), thus actually requiring 
specific protection at the domestic level, such INGO's do not fall under the 
same legal umbrella as IGOs.)
Therefore, as a matter of principle there is no automatic need for "specific 
domestic laws" to deal with the protection of IGO names and acronyms in 
multiple jurisdictions (even though many countries have enacted related 
domestic legislation as indicated in past submissions by IGOs) - in other 
words, the factual assessment that IGOs enjoy both treaty-level and specific 
domestic law protections should neither imply nor be interpreted as IGOs 
constituting acceptance of ICANN's "two-tier" test, which is not to be regarded 
as valid legal doctrine nor interpreted per se as an international legal 
principle applicable to IGOs.
Bearing in mind the above, we believe that an appropriate basis for the scope 
of protection for IGO names and acronyms is already set out in the GAC Toronto 
advice (i.e. preventing third-party registration of a domain name which 
comprises an IGO name and/or acronym), the legal and public policy basis of 
which has already been addressed in previous IGO submissions to the group. 
Assuming such preventive protection would be granted, and provided prior notice 
is given to and written permission obtained from the relevant IGO as a 
necessary precondition for any registration of a domain name which corresponded 
to an IGO name and/or acronym, we would also be open to discussing possible 
mechanisms to manage any future claims of co-existence, should requests for 
registration and claimed legitimate use of domain names corresponding to IGO 
names and/or acronyms be forthcoming.  Without prejudice to the essential 
principles above, we also think it is germane to bear in mind that the number 
of IGOs in the world at present is around 200 (roughly comparable to the number 
of country names already included in the reserve list), a number which 
evidently reflects an infinitesimal fraction of the number of potentially 
available domain names which do NOT correspond to an IGO name and/or acronym, 
especially in a vastly expanded DNS.
Concerning Questions Posed on Nature of the problem / Evidence of harm
The nature of the problem as we see it from an IGO perspective is well 
understood within ICANN and goes back years, with evidence of long-existing 
problems and risks already before the group.  In particular, such evidence has 
been provided by previous ICANN documents/reports (including e.g. the GNSO's 
own 2007 Issues Report, referred to previously), as well as other submissions 
by the OECD, UPU, WIPO and the IGO community (not to mention the extensive 
evidence of funding campaign domain name abuse presented by the Red Cross, 
which while not strictly an IGO itself, shares its humanitarian mission with 
numerous IGOs).

It may also be worth recalling, as we have mentioned in previous submissions, 
that the nature of protection which is provided for IGO names and acronyms 
under international law and many national jurisdictions and the operation of 
6ter of the Paris convention are not contingent on a demonstration of harm as 
such (assessment of which can require an element of subjective judgment), but 
rather on the relevant IGO demonstrating certain objective criteria as set out 
in that treaty.  It is also notable that neither the GAC Toronto advice, nor 
the Board resolution on IGO preventive protection, require a showing of 
evidence of harm as such.

In any event, while one could always find further examples, we do not 
understand the need to revisit these facts in view of the existing evidence and 
records referred to above.  Perhaps most relevant for the current phase of the 
DNS is the fact that this existing problem, and the consequent risk of harm, 
will take on an even more serious dimension as a result of ICANN's pending 
introduction of 1000+ new domains (roughly 50 times the present number).

In short, we believe that the answer and evidence in response to question A is 
already before the group, and do not see the relevance or applicability of 
question B.

We hope that the above responses are found helpful to the group's 
deliberations, and we would be happy to provide further clarification as 
required - in conclusion, we look forward to our continuing deliberations 
on-line.

Yours sincerely,

David, Ricardo and Sam