RE: [gnso-igo-ingo] Protection of the RCRC designations - RCRC comments

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

Stephane,

Please see my responses below.

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx [mailto:owner-gnso-igo-ingo@xxxxxxxxx] On 
Behalf Of Stephane Hankins
Sent: Friday, April 19, 2013 8:59 AM
To: gnso-igo-ingo@xxxxxxxxx; Thomas Rickert
Cc: Christopher RASSI (christopher.rassi@xxxxxxxx); Debra.Hughes@xxxxxxxxxxxx; 
Catherine Gribbin
Subject: [gnso-igo-ingo] Protection of the RCRC designations - RCRC comments

Dear Thomas, dear all,

Further to last Wednesday’s Conference call, we would like to share with you 
below some of our thoughts and positions on the various proposals now under 
consideration by the Working Group.

(1) We appreciate firstly that the Group appears to be in agreement on a 
differentiated approach and consideration of the respective cases for 
protection under its consideration, namely IGO’s, the IOC, the Red Cross and 
Red Crescent, and INGO’s. As you will recall, it has been a consistent concern 
from our side that the sui generis case for protection and reservation of the 
Red Cross and Red Crescent designations and names be distinguished and examined 
in their own right, and thus considering the particular protection of these 
designations and names under universally agreed international humanitarian law 
treaties and the legislation in force in multiple jurisdictions.

(2) At the top and second level, we ask that:

-        the current moratorium on the Red Cross, Red Crescent and Red Crystal 
designations be made permanent in all new gTLD’s and for all future rounds, as 
recently confirmed by the GAC in its advice to ICANN’s Board on the occasion of 
the recent Beijing Meeting;

-        it be confirmed, consistent with our recent submissions, that the 
protections already recognized to the Red Cross and Red Crescent designations 
extend not only to the 29 designations expressly listed in the Applicant 
Guidebook and revised Registry Agreement, but also to the full names of the 
respective Red Cross and Red Crescent organizations (such as the names “British 
Red Cross”, “Afghan Red Crescent”, “International Committee of the Red Cross” 
or “International Federation of Red Cross and Red Crescent Societies”). A full 
list of names of the respective Red Cross and Red Crescent organizations can be 
made available;
[Gomes, Chuck] I am concerned that new additions like these are being suggested 
at this late stage of the process.  In the case of the RySG as I think David 
and I have made clear, we have to get the input of the full RySG before we can 
support a position beyond our personal views.  We did that over the last 
several weeks including spending time in a very busy meeting on Constituency 
day in Beijingand will be communicating the RySG position before the WG meeting 
next week.  In my opinion, it is too late in the process to suggest adding to 
the list; moreover, the GAC recommendations do not include the new names you 
added.


-        the designations and names of the Red Cross and Red Crescent remain 
available for registration as domain names for the respective Red Cross or Red 
Crescent organizations (e.g. through inclusion on a Modified Reserved List). As 
noted in our past communications to the Group, the risk of claims or contests 
emanating from organizations outside of the International Red Cross and Red 
Crescent Movement would be virtually null, as the number of organizations duly 
authorized under international law (and domestic laws) to make use of the Red 
Cross or Red Crescent designations for indicative purposes is finite and 
specified under relevant international treaties (the instance of grand-fathered 
use is strictly constrained under relevant international treaties; the 
respective Red Cross or Red Crescent organizations are not entitled to 
"licence" the designations or their names);

-        should the need be felt, we would not oppose the notion of safeguards 
or of a consent based exception procedure for demonstrated rights holders, as 
has been proposed within the Group, and thus in particular with regard to the 
acronyms of Red Cross or Red Crescent organizations
[Gomes, Chuck] As I communicated on the call last week, I am personally not 
favorably disposed to a consent based exception procedure because it is more 
complicated and puts the protected organizations in a position of power that I 
think is better to be avoided.  I prefer a simpler process whereby an exception 
would be granted automatically if the applying organization can demonstrate via 
the clearing house that it has rights to the applied-for name if the registrant 
will agree to not use the name in any way that would cause confusion with the 
protected organization.  Note that this is my personal position and not one 
that the RySG has discussed.
.

As noted in past exchanges with the Group, the acronyms of the two 
international organizations within the International Red Cross and Red Crescent 
Movement, namely those of the International Committee of the Red Cross 
(ICRC/CICR) and of the International Federation of Red Cross and Red Crescent 
Societies (IFRC), are today well established and their association with both 
organizations widely recognized, including in the context of Resolutions 
adopted by States at the International Conferences of the Red Cross and Red 
Crescent. We would agree that the registration of the said acronyms into the 
TMCH could offer a viable option, subject however to the confirmation that
§        the said acronyms are eligible to be registered under the TMCH; and 
that
§        the respective Red Cross or Red Crescent organizations enjoy standing 
to activate subsequent objection mechanisms and enjoy a waiver of fees in 
registering under the TMCH and in resorting, as may be required, to objection 
procedures.
[Gomes, Chuck] If the fees were waived, who would pay for the services that the 
fees cover?  I am not sure that other paying registrants should be asked to 
subsidize the fees for the Red Cross.  Do you think they should?  If the names 
are of value to the Red Cross, paying the fees should be a worthwhile business 
expense just like other administrative expenses that you incur.  Again, these 
are my personal thoughts.


   With best regards,

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>


----- Forwarded by Stephane Hankins/DC_MOUV_CHF/GVA/ICRC on 19.04.2013 13:20 
-----

From:        Stephane Hankins/DC_MOUV_CHF/GVA/ICRC
To:        gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>, Thomas 
Rickert <rickert@xxxxxxxxxxx<mailto:rickert@xxxxxxxxxxx>>
Cc:        "Christopher RASSI 
(christopher.rassi@xxxxxxxx<mailto:christopher.rassi@xxxxxxxx>)" 
<christopher.rassi@xxxxxxxx<mailto:christopher.rassi@xxxxxxxx>>, 
"Debra.Hughes@xxxxxxxxxxxx<mailto:Debra.Hughes@xxxxxxxxxxxx>" 
<Debra.Hughes@xxxxxxxxxxxx<mailto:Debra.Hughes@xxxxxxxxxxxx>>, Catherine 
Gribbin <Catherine.Gribbin@xxxxxxxxxxx<mailto:Catherine.Gribbin@xxxxxxxxxxx>>
Date:        11.03.2013 18:41
Subject:        [gnso-igo-ingo] Protection of the RCRC designations - RCRC 
comments
________________________________


Dear Thomas, dear all,

(1) Further to your request, we would like herewith to reiterate the Red Cross 
and Red Crescent position that the protections of the red cross, red crescent 
red lion and sun and red crystal designations be recognized, and implemented 
preventively, within ICANN's mechanisms, rules and agreements at both top and 
second level. This would conform to the requirements of international 
humanitarian law - the four Geneva Conventions of 1949 and their Additional 
Protocols of 1977 and 2005.

As regards the preventive mechanisms in place and in light of some of the 
debates held yesterday during the WG call, we would like to recall once more 
that this is not just an issue of fees, for which a waiver or coverage could it 
seems be considered, but also one of the monitoring and control burden that a 
reactive/curative approach would represent for the Red Cross and Red Crescent 
organisations. The prohibitions under the aforementioned Conventions on misuse 
or unauthorized use of the designations are in this regard clear and should be 
enforced. We will await of course the forthcoming opinion of ICANN's Legal 
Council, but it should obviously be borne in mind that the primary treaties 
concerned were adopted at a time - 1949 - when the Internet did not exist, and 
that their formulations could hardly be expected at the time to expressly and 
specifically address the issue of the registration of domain names. The same 
holds true of the national implementating legislation for the 1949 Geneva 
Conventions in force in many national jurisdictions.

(2) As to the issue of acronyms of organizations, as we mentioned during the 
last conference call, it might indeed be required from a general perspective to 
seek to define criteria for their protection and reservation, based for 
example, besides protection under international law and/or the domestic law in 
multiple jurisdictions, on international recognition, commonality of usage 
and/or the level to which the concerned organizations are identified and known 
by their acronym. One example is the acronym of the International Committee of 
the Red Cross (ICRC, CICR, MKKK) which enjoys a high level of recognition and 
is used and referred to in a number of past resolutions adopted by the 
International Conference of the Red Cross and Red Crescent, in which all States 
parties to the Geneva Conventions (195 to date, following the recent accession 
by the Republic of South Sudan) participate as full members. It should also be 
noted that the acronym is also and furthermore an integral part of the ICRC's 
official logo (copied below).

[cid:image001.gif@01CE3D38.CB305B90]
Considering that indeed these acronyms, including the acronym of the 
International Federation (IFRC), are not per se protected under international 
humanitarian law treaties and may be in use by other organizations, we would 
agree with the suggestion that the acronyms be subject, when applied for in a 
second-level domain name, to some form of "exception process" or "dispute 
resolution procedure" for applicants claiming to have a legitimate interest in 
registering the acronyms (a procedure for which however appropriate criteria 
would need to be defined).

(3) Further to past discussions within the group, we are in the process of 
verifying a table of the names of National Red Cross or Red Crescent Societies 
which would require protection, together with the names "International 
Committee of the Red Cross" and "International Federation of Red Cross and Red 
Crescent Societies" and their acronyms, and thus in addition to the 
designations of the emblems protected under international humanitarian law 
("Red Cross", "Red Crescent", "Red Lion and Sun" and "Red Crystal"). Another 
solution would indeed be to consider to provide for a String Similarity review 
by key word, thus allowing to cover all strings including the aforementioned 
designations.

(4) As we have mentioned in the past, limiting the reservations and the 
reserved names list to exact matches of the designations and of the names of 
the Red Cross and Red Crescent organizations to exact matches would not fully 
suit the requirements of the protections as they are defined under 
international humanitarian law, which also prohibit imitations. A String 
Similarity mechanism would thus be warranted at the top level and, as far as 
technically feasible, at the second level in order to prevent the registration 
of names/strings which are confusingly similar.


(5) Lastly, regarding the proposed protection matrix circulated before last 
week's call, we would like to recommend that the RCRC entry in Column 4, Tab 
“TOP LEVEL”, as well as the tab “SECOND LEVEL”, be revised to include a 
reference to “multiple national laws”.

We remain available to discuss any of the points described above.

With best regards,

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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