[gnso-igo-ingo] Initial Report

[Kiran Malancharuvil <kmalancharuvil@xxxxxxxxx>]

Dear All,
Thank you Berry and Thomas for preparing this initial report. Before our group 
meeting on Monday in Beijing, we wanted to call attention to some global issues 
in the report that should be addressed.

When the IOC/RCRC issue was encapsulated into the IGO/INGO PDP in Prague, we 
expressed concern that the group would lose focus regarding the distinct 
position of these organizations. As you well know, the IOC/RCRC has 
demonstrated, over the course of this PDP and previously in the context of the 
IOC/RCRC Drafting Team, that the harm to these two organizations and to 
consumers, as well as the legal status of these two organizations are unique. 
We have answered every specific request for information with the goal of 
fostering consensus on the issue. The IOC position has been confirmed by GAC 
Advice, ICANN Board action and the General Counsel, through its response to 
this working group. We hoped that the group, and ICANN Staff (through its 
drafting of presentations to the GNSO and through its drafting of this initial 
report) would continue to recognize the separate and distinct nature of these 
two organizations, without prejudice to other organizations that may seek 
protection under a separate set of qualification criteria.

However, we note with disappointment the lack of content in the initial report 
(aside from the Background section) that recognizes the special nature of the 
IOC and the RCRC. For example, Section 5.1.1 does not acknowledge that the main 
findings of ICANN's General Counsel Office were overwhelmingly positive for the 
IOC and RCRC. The report stated: "Nearly all of the sampled jurisdictions 
(representing all geographic regions) provide protections to the IOC and/or 
RCRC for the use of their names and acronyms, and those protections are often 
understood to apply to domain names." This is a very different statement than 
what appears in the initial report, which suggests that only the Brazilian and 
Mexican statutes could reasonably be interpreted as applying to domain names.

We believe that treating these organizations as distinct and separate from IGOs 
or other INGOs is not discriminatory, as some members of the group have 
claimed. Rather, separating the issue from the others categories of 
organizations benefits all, as it allows us to focus on developing the same 
kind of research and providing the same thoughtful consideration as was done 
previously for the IOC/RCRC. While we acknowledge that this group is not 
beholden to the findings of the IOC/RCRC Drafting Team, we should try to 
benefit from the hard work of the community during that process, and we should 
allow ourselves to learn from and be guided by that information.

We recall the discussions in Prague about expediting this issue within the 
context of the PDP process. Because the IOC and RCRC have provided voluminous 
evidence of consumer harm, harm to the organization and sui generis 
multinational protection (confirmed by ICANN General Counsel), we believe that 
it is appropriate to move forward on this subsection of the PDP. Accordingly, 
we request that the initial report include, as a minority viewpoint, the 
suggestion that the group should follow GAC advice regarding the IOC/RCRC by 
recommending protection on the second level as a matter of urgency. By reaching 
conclusion on this issue, the group can more constructively develop appropriate 
solutions for the IGO and remaining INGO organizations that seek protection 
through this PDP.

We look forward to discussing this matter further with you on Monday.

Best regards,

Jim, David & Kiran


Kiran J. Malancharuvil
Silverberg, Goldman & Bikoff, L.L.P.
Georgetown Place
1101 30th Street, N.W., Suite 120
Washington, D.C. 20007
(202) 944-3307 - o
(619) 972-7810 - m
kmalancharuvil@xxxxxxxxx<mailto:kmalancharuvil@xxxxxxxxx>


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