[gnso-iocrc-dt] RCRC views regarding protection at the second level

["Hughes, Debra Y." <Debra.Hughes@xxxxxxxxxxxx>]

Dear colleagues,

1. As a follow-up to Jeff's email, we would like to share our views in regards 
to the use of Red Cross and Red Crescent denominations within second-level 
names.

2. The 1949 Geneva Conventions are binding for virtually all States: 194 in 
total. In addition to the Conventions themselves, the national legislation of 
the States party to the Conventions make it a criminal offence to use the names 
"red cross", "red crescent" and "red lion and sun" unless they are used by 
legitimate users; the 2005 Third Additional Protocol also added a new name and 
emblem, called the "red crystal". Virtually all States of the world are 
therefore under the same legal regime of the Geneva Conventions, which 
prohibits the use of these denominations, but also of their "imitations", to 
use the terminology of the First Geneva Convention (Article 53).

Therefore, any use of these denominations (or an imitation of those) is illegal 
and may result in criminal prosecution at national level, unless they are used 
by any of the components of the International Red Cross or Red Crescent 
Movement, including its international bodies (the International Committee of 
the Red Cross or the International Federation of Red Cross and Red Crescent 
Societies) or any of the National Red Cross or Red Crescent Societies. There 
are very few exceptions in which under a national context a "non-Red Cross 
user" can use the name, because of certain uses of the term that predated the 
enactment of national legislation, such as "Red Cross salt" in the US, but none 
of these exceptions applies internationally, and new exceptions are no longer 
possible.

It is worth mentioning that this debate is not taking place in the context of 
trademarks: as surprising as it may seem, the use of the denominations "red 
cross", "red crescent", "red crystal" and "red lion and sun" are not merely 
subject to trademark. As we noted above, the use of these denominations for the 
Red Cross/Red Crescent is protected by criminal laws.  Even in regards to the 
above-mentioned exceptions, the use of the name "Red Cross" would not result in 
the payment of royalties to the Red Cross by these grandfathered users. The 
interests at stake relate to the protection of war victims and our humanitarian 
mission-related activities, not about commercial issues. This issue is not 
about defending trademark rights, but ICANN's compliance with criminal laws in 
the 194 States, including the US, for which the Geneva Conventions are binding.

3. In practice, the Red Cross/Red Crescent frequently face issues related to 
the abuse of their name and identity in second-level domain names. For 
instance, a couple of weeks ago, a scammer registered a domain name called 
"recrosssociety" under an existing gTLD, and that site was used to divert 
money. This required legal action to be started, in order to have the 
second-level domain name removed or at least "emptied" from its contents by the 
registry. The Red Cross/Red Crescent would prefer to use the monies that are 
generously donated to assist the worldwide communities the Movement serves and 
not have to reallocate resources to address fraud.

4. The 1949 Geneva Conventions do not distinguish between languages: although 
the first version of the Applicant's Guidebook included a list of names in the 
six UN official languages, to limit the prohibition to those languages does not 
make sense: the prohibition must prevail, in a given country, for all languages 
commonly used in that country. As a consequence, because domain names apply on 
a transnational level, the prohibition must apply to all languages, as a rule.

Of course, we understand that, for practical purposes, the work of registries 
could be tremendously facilitated by having a list of the above-mentioned 
denominations in the languages which are the most frequently used on the 
Internet (around one hundred languages would probably cover about 99% of the 
world population). Any registry receiving a request of registration of a 
second-level domain should therefore have an automatic system by which the 
request for registration of any denomination from the list or an imitation 
thereof should raise a red flag, requiring the registry to check whether the 
user is legitimate. Failing this, the application should be refused in order to 
ensure the respect of existing norms of international humanitarian law, and 
ensure that the registry is also complying with national legislation.

We are actively working with our member Societies worldwide in order to know 
which languages will be relevant for their respective context. As agreed, we 
will do our utmost to produce such a list before the ICANN Board meeting in 
Costa Rica.

Best regards,

Debra Hughes (American Red Cross)
Christophe Lanord (International Federation of Red Cross and Red Crescent 
Societies)
Stéphane Hankins (International Committee of the Red Cross)



Debra Y. Hughes
Senior Counsel

American Red Cross
2025 E Street, NW
Washington, D.C. 20006
202.303.5356 (p)
202.303.0143 (f)
Debra.Hughes@xxxxxxxxxxxx
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