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

["Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx>]

As I read it, "denomination" simply means the names Red Cross, Red Crescent, 
Red Lion and Sun, or Red Crystal -- why use a one syllable word when a five 
syllable word will do?  :-)
 
After taking a quick look at Article 53 of the First Geneva Convention and some 
related commentary, it appears that an "imitation," placed in the context of 
the work of this group, would be a string that would be confusingly similar to 
one of the "denominations", such as the "recrosssociety" example cited below.
 
I think the GAC request goes beyond protection of exact matches -- the final 
bullet point on page 2 of the proposal specifically states that the Olympic and 
Red Cross terms should receive "consideration during the String Similarity 
review."
 
Greg

________________________________

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Alan Greenberg
Sent: Tuesday, February 28, 2012 11:18 PM
To: Gomes, Chuck; Hughes, Debra Y.; gnso-iocrc-dt@xxxxxxxxx
Subject: Re: [gnso-iocrc-dt] RE: RCRC views regarding protection at the second 
level


I'm not at all sure what "any denomination" or "an imitation thereof" mean, but 
the GAC Q&A was quite clear that what was being requested was only exact 
matches of the strings and their translations.

But perhaps best to leave the 2nd level issues in abeyance this week...

Alan

At 28/02/2012 04:49 PM, Gomes, Chuck wrote:


        Thanks Debbie.  This is very helpful to me.
         
        I have concerns though about the following in the next to last 
paragraph:  "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."  An automatic system is possible if there is a list of names that 
are excluded.  But when I see words like "any denomination" or "an imitation 
thereof", I don't know how that can be automated.  Similarly, how could a 
similarity test be done?
         
        Chuck
         
        From: owner-gnso-iocrc-dt@xxxxxxxxx [ 
mailto:owner-gnso-iocrc-dt@xxxxxxxxx <mailto:owner-gnso-iocrc-dt@xxxxxxxxx> ] 
On Behalf Of Hughes, Debra Y.
        Sent: Tuesday, February 28, 2012 2:15 PM
        To: gnso-iocrc-dt@xxxxxxxxx
        Subject: [gnso-iocrc-dt] RCRC views regarding protection at the second 
level
         
        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   
        [] [] 
        This electronic message transmission contains information from the 
Office of General Counsel of the American Red Cross and may be confidential or 
privileged.  The information is intended to be for the use of the individual or 
entity named above.  If you are not the intended recipient, be aware that any 
disclosure, copying, distribution or use of the contents of this information is 
prohibited. If you have received this electronic transmission in error, please 
notify me immediately by telephone 202.303.5356 or by e-mail at 
Debra.Hughes@xxxxxxxxxxxxx and delete this e-mail message from your computer. 
Thank you. 
 
* * *
 
This E-mail, along with any attachments, is considered confidential and may 
well be legally privileged. If you have received it in error, you are on notice 
of its status. Please notify us immediately by reply e-mail and then delete 
this message from your system. Please do not copy it or use it for any 
purposes, or disclose its contents to any other person. Thank you for your 
cooperation.
* * *
To ensure compliance with Treasury Department regulations, we inform you that, 
unless otherwise indicated in writing, any U.S. Federal tax advice contained in 
this communication  (including any attachments) is not intended or written to 
be used, and cannot be used, for the purpose of (1) avoiding penalties under 
the Internal Revenue Code or applicable state and local provisions or (2) 
promoting, marketing or recommending to another party any tax-related matters 
addressed herein.
Disclaimer Version RS.US.1.01.03
pdc1