Re: [gnso-igo-ingo] Qualification Criteria
Again, what is referred to as "preventative" measures here are what courts of law would call "a prior restraint on speech", and not something a court of law would be willing to grant these groups. ICANN is not supposed to be creating privileges that exceed those which exist in law. I don't believe this group will reach a consensus to create a policy that embeds prior restraints on speech into DNS policy. I think a more realistic focus for those who seek special privileges from ICANN are extending existing RPMs such as the TMCH to the needy groups, and even then, the "needy" criteria needs to be shown. Robin On Mar 6, 2013, at 8:58 AM, GUILHERME ricardo wrote: Dear All,Once more we must stress, from our perspective, the need for preventive protection against any inappropriate third party registration/use of IGO names or acronyms, as determined by international law and various domestic statutes - needless to say, this need has already been acknowledged and accepted by both the Board's New gTLD Program Committee and the GAC. As a limited category of entities created by international law and with an intrinsic public policy/public good function, the names and acronyms of IGOs must be kept from potentially abusive registration at the top- and second levels. This very limited group of organizations enjoys protection under international and domestic laws in a way that differs in many key respects from the protections afforded to non-IGO trademark owners – in other words, the names and acronyms of IGOs benefit from certain forms of preventive protection under international law against unauthorized use and registration (i.e., non-registrability of their names and acronyms), which are then incorporated (either directly or through specific domestic statutes) into the national laws of countries.Such a protection both recognizes the international intergovernmental nature of IGOs, and the fact that it is not practicable for such organizations to submit to the jurisdiction of any one national legal system for purposes of enforcing rights in IGO names and acronyms which may be subject to improper use or abuse - needless to say, cases of abuses of their names and acronyms on the Internet have already been widely reported and documented by IGOs.Moreover, IGOs have a public mission and are funded by public money, which is ultimately derived from taxpayers. Thus, any abuse of IGO names and acronyms within the domain name system which must be remedied via insufficient fee-based curative (as opposed to preventive) mechanisms comes at a cost to the public missions of IGOs, which is likely to be prohibitive in a vastly expanded domain name system. Let us be clear again: the protection of IGO names and acronyms is not related to ordinary trademark protection, but instead to a highly-limited category of public entities established and protected under international law;nor are IGOs to be considered the same as INGOs such as RC and the IOC or lumped together in the same legal basket.Moreover, preventive protection against third-party registration for IGO names and acronyms (other than with the relevant IGO's permission, to manage any potential coexistence or legitimate uses) at the top and second levels in any future gTLD rounds is hardly likely to significantly impact the potentially limitless words or phrases which could otherwise be used by future applicants/ registrants. There is no need to repeat here the clear indications of abuse of IGO names and acronyms in the DNS.Additionally, as is currently the case for ICANN itself and for country and territory names, IGOs should not be required by ICANN to have to pay for uncertain curative redress against after-the- fact abuse of their names and acronyms in ICANN's vastly-expanded DNS. Incidentally, the mere idea of "simply" amending/establishing RPMs to provide curative redress for IGOs would in any event be problematic for that category of entities, because any amendment of existing mechanisms, including the UDRP as a Consensus Policy, is likely to be : (i) highly contentious and time consuming ; (ii) take place well after new gTLDs have launched (too late); and (iii) to the extent that these may require IGOs to submit for mutual jurisdiction purposes to national jurisdiction, infringe their privileges and immunities as accorded by international law.Finally, in what pertains to INGOs and their trademark-based terms (apart perhaps from the RC case), the absence of the mandatory legal framework above (which is applicable exclusively to IGOs) provides this group with the necessary flexibility to come up with INGO-specific criteria which should, to the maximum possible extent, be objective and non-discriminatory as expressed in Claudia’s message below – so if there are to be special protections for INGOs, the relevant objective criteria can be worked on and defined by this WG on the basis or broader or narrower criteria as hinted below by Greg; but we would reiterate again that, for the purposes of this debate, the IOC’s name, acronym and the “olympic” term are NOT and have never been protected by treaty – so any protection granted to IOC or the “olympic” term should be equivalent to that received by other INGOs, as it is NOT to be equated with the framework applicable to IGOs or the RC and its associated terms.Unfortunately I will have to apologize for not being able to join tonight’s call due to other professional commitments (document filing deadlines) – but I hope the considerations above are useful for the group’s discussions, at least as far as IGOs are concerned.With kind regards, Ricardo GuilhermeDe : owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo- ingo@xxxxxxxxx] De la part de Shatan, Gregory S.Envoyé : mercredi 6 mars 2013 17:28À : 'Claudia MACMASTER TAMARIT'; Gomes, Chuck; Thomas Rickert; gnso- igo-ingo@xxxxxxxxxObjet : RE: [gnso-igo-ingo] Qualification CriteriaI agree with Claudia that the proposed requirement that an organization receive “multilateral or multinational protection beyond ordinary trademark laws” be rejected.I disagree for the most part with “extraordinary public service” as a criterion or even as an inspiration for objective criteria, although this gets to the “three dimensional” nature of the discussion. In other words, if we are talking about extraordinary remedies and prophylactic measures, I am more inclined to support a higher bar. However, if we are merely talking about making sure that IGOs/INGOs have full access to existing RPMs (or RPMs that track to existing RPMs), then I think that “ordinary” reach and public service (i.e., being an IGO or INGO) should be sufficient; if we still need some threshold to distinguish INGOs from non- international NGOs, that threshold should be relatively low (and objective and fair (not tailored)).Greg Gregory S. Shatan Partner Reed Smith LLP 599 Lexington Avenue New York, NY 10022 212.549.0275 (Phone) 917.816.6428 (Mobile) 212.521.5450 (Fax) gshatan@xxxxxxxxxxxxx www.reedsmith.comFrom: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo- ingo@xxxxxxxxx] On Behalf Of Claudia MACMASTER TAMARITSent: Wednesday, March 06, 2013 8:40 AM To: Gomes, Chuck; Thomas Rickert; gnso-igo-ingo@xxxxxxxxx Subject: RE: [gnso-igo-ingo] Qualification Criteria Chuck and all,It’s not a broken record at all. I think it’s at the very heart of the matter. We’ve suggested criteria to try to get at that idea. And we’ve seen evolution as the weeks go by and we struggle for some direction and agreement.We might look to several benchmarks of international and national recognition of extraordinary reach and public service from an international organization. We have mentioned including room for evidencing it with organizational mandates, formal membership by governmental or public institutions and corresponding financing, etc. And we’ve looked at the possibility of recognizing established lists where these kinds of criteria might have already been shown.In any regard, I support your conclusion (which I pray I don’t mischaracterize) that any criteria should be reviewed in light of the public interest.Sincerely, Claudia From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] Sent: 2013-03-06 14:23 To: Claudia MACMASTER TAMARIT; Thomas Rickert; gnso-igo-ingo@xxxxxxxxx Subject: RE: [gnso-igo-ingo] Qualification Criteria Claudia,I apologise for what must sound like a broken record for me but I have some questions for you or others:1. How do we define ‘extraordinary public service’? 2. How do we measure ‘extraordinary public service’?3. Who would evaluate whether or not ‘extraordinary public service’ applies?Whatever criteria we ultimately agree on, each of these questions will need to be answered by this WG.ChuckFrom: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo- ingo@xxxxxxxxx] On Behalf Of Claudia MACMASTER TAMARITSent: Wednesday, March 06, 2013 5:46 AM To: Thomas Rickert; gnso-igo-ingo@xxxxxxxxx Subject: RE: [gnso-igo-ingo] Qualification Criteria Dear colleagues,As a very quick but strong objection, please note that the below added requirement that an organization receive “multilateral or multinational protection beyond ordinary trademark laws” is not only unsupported and ambiguously worded but is exceedingly discriminatory without any justification. We therefore strongly object to its inclusion in any final recommendation.This biased criteria could unjustifiably exclude established international non-profit organizations with (special national legislated recognition of its) broad geographic scope and exceptional international service simply because they can point to “only” multinational trademark protection of its name without any regard for the public interest.The Unredacted version of the Board Workshop Paper from 28 August 2012 (which might not be binding but is certainly informative) stated that criteria “must be tailored so the reservation is limited to a few with extraordinary reach and public service.” Short of where the law requires it, shouldn’t special protection be tailored to get at that kind of an idea – extraordinary reach and public service? Criteria surely cannot be shaped to simply shut the door on other established non-profit INGOs with extraordinary public service simply because they rely different legal protections than the IOC.The Internet spans national borders (wherein legislation may often require a showing of abuse) – granting special protection must clearly be hinged on the public interest.Sincerely, Claudia MacMaster Tamarit (ISO) International Organization for StandardizationFrom: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo- ingo@xxxxxxxxx] On Behalf Of Thomas RickertSent: 2013-03-01 20:29 To: gnso-igo-ingo@xxxxxxxxx Subject: [gnso-igo-ingo] Qualification Criteria All,we have discussed the question of qualification criteria (again) during our last call, as you will recall.What we have on the table at the moment are the two proposals below. Do you think we can merge them or come up with a new set of criteria?Following the last call, let me also remind you that these criteria are the first hurdle to be taken qualify for the protections. #We discussed that there might be additional criteria (admission criteria) for the protection mechanism in question.I guess Alan was the first to make the point during the call. Can I ask all of you (and Alan in particular :-)) to think of whether and what additional criteria you would like to set up as a second hurdle for admission to the protections?Thanks, Thomas Here come the two sets of qualification criteria:1. What I amalgamated from Mary's proposal and our previous discussions:Organizations that serve the global public interest, that are international in scope and operations, and whose primary mission is of such public importance that some form of special protection for its name and acronym can be justifiedMeeting two of the following criteria is deemed to be sufficient evidence of the above requirements for an organization to be eligible for protections. The protection encompasses the name and the acronym of the respective organization as well as designations that - as the case may be - are explicitly mentioned in a treaty as a protected designation.- Protection by treaty- Protection in multiple national jurisdictions (either by virtue of a specific law or treaty protection that is enforceable in a multiple jurisdictions without the requirement of a specific enactment- Mission serving the global public interest - inclusion in the Ecosoc list 1. What Mary/Jim have recently submitted:“It seems to me that what we are striving to get to is a minimum standard to qualify for special protections (of whatever nature), and that many of those that have been suggested already, e.g. treaties, national laws, organizational mandates etc., are a form of proxy for the vague concept that:"an organization [must] be · international in scope and operations, and · its primary mission be of such public importance· that it receives multilateral or multinational protection beyond ordinary trademark laws, and· that some form of special protection for its name and acronym can be justified."* * *This E-mail, along with any attachments, is considered confidential and may well be legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes, or disclose its contents to any other person. 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