[gnso-igo-ingo] Draft Initial Report for IGO/INGO PDP WG

[Jim Bikoff <jbikoff@xxxxxxxxx>]

Dear All,

We have already more than sufficiently answered Ricardo's mischaracterizations 
of the IOC position; instead of repeating ourselves, we will simply incorporate 
the prior responses by reference. The ICANN Board 's criteria  for reserved 
names protection did not indicate that the name itself need be protected by 
treaty - they use the phrase "one or more Properties of the ... Organization."  
The Nairobi Treaty evinces an acknowledgement, internationally, of the 
determination to protect Olympic properties.

In contrast, one could question whether the UPU enjoys any international treaty 
protection at all, as the Paris Convention merely provides a process by which 
the UPU can seek protection in signatory countries.   The International Olympic 
Committee has already received protection from multiple countries across the 
world.  These protections apply broadly to uses of the protected Olympic words, 
in domain names and otherwise.
As Kiran noted the other day, the IOC and RCRC are operating under shared 
criteria for protection. This was the position already taken by the GAC, 
already fully discussed by the IOC/RCRC Drafting Team, and already accepted by 
the ICANN board.  This issue has been addressed, and the bases for common 
protection for the IOC and RCRC  have been established since the ICANN meeting 
in Singapore in 2011.

Regards,

Jim

James L. Bikoff
Silverberg, Goldman & Bikoff, LLP
1101 30th Street, NW
Suite 120
Washington, DC 20007
Tel: 202-944-3303
Fax: 202-944-3306
jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx>





________________________________
From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[owner-gnso-igo-ingo@xxxxxxxxx] on behalf of GUILHERME ricardo 
[ricardo.GUILHERME@xxxxxxx]
Sent: Friday, June 07, 2013 5:36 AM
To: 'Claudia MACMASTER TAMARIT'; Roache-Turner, David; Gomes, Chuck; Kiran 
Malancharuvil; Jim Bikoff; mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] RE: Draft Initial Report for IGO/INGO PDP WG
Dear All,

We also support such a separation for the very simple fact that, as explained 
before, the IOC name and « Olympic » do NOT enjoy any international treaty 
protection.

With all due respect to what has been said repeatedly by the IOC counsels, 
there is absolutely NO legal basis for stating that there is « indication of a 
determination » to protect the IOC names and/or « Olympic » terms on the basis 
of the Nairobi Treaty - the Vienna Convention on the Law of Treaties, which 
encompasses all relevant customary international law principles of treaty 
interpretation, refers in particular to the fact that interpretation must be 
done in good faith and "in accordance with the ordinary meaning to be given to 
the terms of the treaty" (literal interpretation) in their context and in the 
light of its object and purpose, as per the strict parameters provided in 
article 31 of that Convention.

Therefore, there is no margin for a "presumption" that the Nairobi Treaty 
reflects international protection of the "Olympic" terms referred to above - if 
countries had wished to protect the "Olympic" term they would have indicated so 
IN the treaty. What happened instead within ICANN was a political decision to 
lump them together with the RC names (which, alone among other INGOs, DO enjoy 
specific international law protection alongside domestic statutes). Moreover, 
every protection enjoyed by the IOC for those terms is based SOLELY on specific 
domestic laws which CANNOT collectively be regarded as "international law" - to 
state otherwise is to misrepresent basic tenets of international law as well as 
the scope of protection contained in the Nairobi Treaty - one of our goals as a 
WG is exactly to come up with conclusions and/or policy recommendations which, 
at the very least, reflect legal reality and avoid discriminatory treatment 
vis-à-vis entities subject to similar protections, despite what has been 
(inaccurately) said by other ICANN bodies on past occasions.

This means that we have three very clear scenarios here:


-          IGOs protected under both international law and numerous domestic 
statutes;

-          RC protected under both international law and numerous domestic 
statutes;

-          Other INGOs/INGO-related terms protected under various domestic 
statutes (including those like the IOC and FIFA which do enjoy specific 
protection in several individual jurisdictions).

Lastly, one additional clarification must be provided in what has been 
mentioned for the Brazilian Federal Law no. 9.615/98 (the "Pelé Law") - the 
specific protection against trademark-related registration/use granted therein 
concerns ONLY signs containing the Olympic symbol as well as the Olympic anthem 
and mottos, and has NO specific reference to domain names as was the case for 
the sunset provisions of Federal Law 12035/2009   - from the original excerpt 
in Portuguese:

"São vedados o registro e uso para qualquer fim de sinal que integre o símbolo 
olímpico ou que o contenha, bem como do hino e dos lemas olímpicos, exceto 
mediante prévia autorização do Comitê Olímpico Brasileiro-COB."

In any case, even the Pelé Law consideration above is immaterial to the point 
that we are trying to make - no one here disputes the domestic protection of 
such terms - what we dispute is the continued assertion within ICANN that the 
IOC/"Olympic" terms are "unique" because they enjoy BOTH international treaty 
and domestic law protection - this is simply not the case.

Best regards,

Ricardo



De : owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] De la part de Claudia MACMASTER TAMARIT
Envoyé : vendredi 7 juin 2013 09:02
À : Roache-Turner, David; Gomes, Chuck; Kiran Malancharuvil; Jim Bikoff; 
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Objet : [gnso-igo-ingo] RE: Draft Initial Report for IGO/INGO PDP WG

Agree with Chuck, David, and Avri.

If we are going to go down the route of separating the cells (as I had 
suggested two weeks ago), we need to make it clear that options are there to 
support protections for the IOs, separately, i.e., IOC, RCRC, IGOS, other 
INGOS.  It's also consistent with some views in the WG.  And quite frankly, we 
could continue for some time if we re-enter discussions of legal 
similarities/differences among IOs for this matrix.

That being said, unless we really expect people to use the matrix to check the 
box and vote, I suspect we will  spend much more time agreeing on the 
rationales for each organizations.  The current rationales would have be to be 
split rewritten for each IO/group of IOs, then commented on, and re-commented 
on.  Or we copy and paste current rationales along 4 different columns, which 
would be rather confusing and duplicative.

What we have is good.  If we can make the explanation better in an efficient 
way, let's do it.  But I hope we don't take this as an opportunity to air out 
our positions and viewpoints again and again.  (Or we might be accused of 
giving Sisyphus a run for his money.)

Best,
Claudia





From: Roache-Turner, David [mailto:david.roacheturner@xxxxxxxx]
Sent: 2013-06-06 19:26
To: Gomes, Chuck; Kiran Malancharuvil; Claudia MACMASTER TAMARIT; Jim Bikoff; 
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: RE: Draft Initial Report for IGO/INGO PDP WG

Agree with you Chuck (apples and oranges un-separated equal fruit salad).

Best,
David

From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Gomes, Chuck
Sent: jeudi 6 juin 2013 19:05
To: Kiran Malancharuvil; Claudia MACMASTER TAMARIT; Jim Bikoff; 
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] RE: Draft Initial Report for IGO/INGO PDP WG

I would just make one modification to Kiran's suggestion: separate IOC and Red 
Cross.  I say that not because I personally think they need to be considered 
separately but because some in the WG have said they should be separated.  We 
might also want to say 'INGOs other than the IOC and Red Cross for (c).

Chuck

From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx]<mailto:[mailto:owner-gnso-igo-ingo@xxxxxxxxx]>
 On Behalf Of Kiran Malancharuvil
Sent: Thursday, June 06, 2013 11:52 AM
To: Claudia MACMASTER TAMARIT; Jim Bikoff; 
mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] RE: Draft Initial Report for IGO/INGO PDP WG

Hi All,

I could support the below, but I recognize that one line of text is very easy 
to miss in a document this size.  Especially since, as Thomas rightfully 
stated, the majority of people will flip directly to the table, and may not 
read any disclaimer that precedes it.

I think it's easy to break it out in the cells.  For example, Recommendation 1 
can read:

            2nd-Level protections of only Exact Match, Full Name identifiers of 
the below organizations are placed in Specification 5 of Registry Agreement:

(a)   IOC and RedCross

(b)   IGOs

(c)    INGOs


Community members that support this Recommendation can say, for example, that 
they support 1(a), 1(b) and 1(c).

Thanks,

Kiran

Kiran Malancharuvil
Internet Policy Counselor
MarkMonitor
202.777.0897 (t)
619.972.7810 (m)
www.markmonitor.com<http://www.markmonitor.com>





From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx]<mailto:[mailto:owner-gnso-igo-ingo@xxxxxxxxx]>
 On Behalf Of Claudia MACMASTER TAMARIT
Sent: Thursday, June 06, 2013 4:13 AM
To: Jim Bikoff; mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] RE: Draft Initial Report for IGO/INGO PDP WG

Support the below.
Best,
Claudia

From: owner-gnso-igo-ingo@xxxxxxxxx<mailto:owner-gnso-igo-ingo@xxxxxxxxx> 
[mailto:owner-gnso-igo-ingo@xxxxxxxxx] On Behalf Of Jim Bikoff
Sent: 2013-06-05 23:10
To: mail@xxxxxxxxxxxxx<mailto:mail@xxxxxxxxxxxxx>; 
brian.peck@xxxxxxxxx<mailto:brian.peck@xxxxxxxxx>; 
gnso-igo-ingo@xxxxxxxxx<mailto:gnso-igo-ingo@xxxxxxxxx>
Subject: [gnso-igo-ingo] Draft Initial Report for IGO/INGO PDP WG

Dear all,

We agree with Chuck that, with regard to publication for public comment, the 
group should not let the perfect be the enemy of the good.

Having said that, we would like to reiterate our recent comments,  which were 
submitted too late for inclusion in version 8.7 of the report.  We have 
included them in the attached document.

With respect the tables of protection options, perhaps the problem of 
distinguishing between the IGOs and INGOs can be solved with a simple 
explanation clarifying that the optional protection is offered for IGOs and /or 
INGOs.  The two categories of organizations may be considered separately from 
one another, and need not be considered together.  For example:

Please Note: In the column labeled "Top-Level Recommendation Options" below, 
IGO and INGO identifiers are listed together for the sake of simplicity.  With 
respect to each option, IGO and INGO protections may be considered separately 
from one another.
We also note that the text in the comment column of row 1 in each table 
requires clarification.  The current text may simply be an artifact of having 
merged several versions of the document, but the final version should not 
indicate that the options in row 1 of each table are inconsistent with the GAC 
advice and ICANN Board actions, at least with respect to the IOC.
Thanks,
Jim
James L. Bikoff
Silverberg, Goldman & Bikoff, LLP
1101 30th Street, NW
Suite 120
Washington, DC 20007
Tel: 202-944-3303
Fax: 202-944-3306
jbikoff@xxxxxxxxx<mailto:jbikoff@xxxxxxxxx>





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