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

[Mason Cole <mcole@xxxxxxxxxx>]

I too agree with Chuck's comments.  

The Applicant Guidebook was clear about the specific IOC and RCRC terms that 
were to be protected, and those were the expectations under which applicants 
applied.  It would not be fair to all parties to try to add to that list at 
this stage, and I believe could jeopardize the outcomes of the PDP.

With regard to exception procedures, I note that Chris Disspain articulated 
very well the difficulties of a consent-based procedure during the Board's 
interaction with the GAC in Beijing (example: the International Standards 
Organization would need to seek the permission of the International Sugar 
Organization to register iso.TLD -- and in such a scenario, we don't know the 
criteria for such decisions, length of times allowed, who would arbitrate the 
decisions, etc.).  The Board correctly pointed out this would be extremely 
complicated to implement.  Whatever exception procedure is arrived at, I 
believe, must be simple and based on objective criteria as much as is possible.

I suppose I too am unclear about the reasoning for a request for a waiver of 
fees. 

Since Chuck's reply to this e-mail, he advanced the position of the RySG on a 
number of matters -- the registrars have not formally weighed in, but as the 
registrar representative on this WG, I can safely say for now that we agree 
with much of the RySG's positions and find them to be fair and equitable.

Mason



On Apr 20, 2013, at 10:01 AM, Robin Gross wrote:

> I agree with Chuck's comments.
> 
> Thanks,
> Robin
> 
> On Apr 19, 2013, at 5:02 PM, Gomes, Chuck wrote:
> 
>> 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 
>> 
>> 
>> ----- 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, Thomas Rickert <rickert@xxxxxxxxxxx> 
>> Cc:        "Christopher RASSI (christopher.rassi@xxxxxxxx)" 
>> <christopher.rassi@xxxxxxxx>, "Debra.Hughes@xxxxxxxxxxxx" 
>> <Debra.Hughes@xxxxxxxxxxxx>, Catherine Gribbin 
>> <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 controlburden 
>> 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). 
>> 
>> <image001.gif>
>> 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
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