Re: [gnso-iocrc-dt] RE: Red Cross/IOC: List of possible approaches to respond to GAC proposal

[Thomas Rickert <rickert@xxxxxxxxxxx>]

Chuck, all,
thanks for putting this together. 

I believe that option 3 a is not acceptable, unless that were the outcome of a 
PDP. I share Avri's concerns with this. If such protections were the the 
outcome of a PDP, that would be fine, but there should be no shortcut. 

Also, I would like to add to the exchange of thoughts between Chuck and Kiran 
on the legal situation that there was a recent court decision in Germany made 
by the regional court of Kiel, which stated that an advertisement of a contact 
lense dealer with "olympic prices" and an "olympic discount" does not 
constitute an infringement of the  Olympiaschutzgesetz (Olympia Protection 
Act). 

Olympic designations cannot be protected against any type of promotional use. 
Combined with the word "discount" and "price" the olympic designation only 
conveys that the offers are very good and according to which current occasion 
such discounts are offered (LG Kiel, Decision of June 21, 2012 - 15 O 158/11).

Thus, the number of cases in which legitimate use of the designations in 
question is possible is getting bigger. We should therefore not shortcut a 
comprehensive assessment. You might say that the court talked about the 
combination of two words while we are talking about identical matches. I would 
think that a the combination of the identical string under a TLD as a 
promotional statement would also constitute legitimate use. 

As a consequence, I think that option 1 is the one to go. We could amalgamate 
what Chuck wrote with (some) of the suggestions I made and I am happy to 
discuss this further tomorrow. 

It would be imperative to write a comprehensive rationale. In addition to what 
Chuck wrote, we should add that:

- there is a GNSO policy on reserved names, which does not grant special 
treatment to certain groups or rights holders
- that where the use of RPMs and DRMs may not be accessible to IOC-RCRC, such 
use should be made possible
- data provided to the DT has shown that abuse predominantly takes place with 
similar strings or where the designations in question are combined with more 
elements and that such abuse cannot be prevented by reserving identical strings
- that ICANN staff should help the organizations to reach out to applicants to 
encourage voluntary inclusion in the reserved names lists of the new 
registries. 

Also, a summary of the discussions and considerations of the DT should be 
included so show the level of complexity and thinking that went into this 
subject. 


Thanks,
Thomas


Am 08.08.2012 um 23:47 schrieb Gomes, Chuck:

> There has been a lot of discussion about the various IOC/RC Discussion Group 
> approaches in the RySG the past several weeks including in the last two 
> teleconference meetings.  In the meeting today, a somewhat new approach 
> gained quite a bit of traction and I will try to describe it here:
> a.      Communicate to the GAC that Discussion Group Option 1 is the GNSO’s 
> starting position for second-level names in the first round of new gTLDs: 
> “Maintain the status quo and not provide any new special protections for the 
> RCRC/IOC names (i.e., no changes to the current schedule of second-level 
> reserved names in the new gTLD Registry Agreement).”
> b.      Provide a rationale for this position
> ·        Possible reasons could include but need not be limited to the 
> following:
>                                                     i.     Reserving names 
> for the IOC or RC could set excessive precedents and motivate unlimited 
> numbers of other organizations to see special protections even though the GAC 
> did a commendable job of trying to narrowly qualify the organizations for 
> which names would be reserved.
>                                                    ii.     Lots of input has 
> been received since the GAC request that makes it less clear that the list of 
> organizations could be sufficiently narrow.
>                                                   iii.     National laws vary 
> regarding their implementation of international treaties including variances 
> about what exceptions are made.
>                                                   iv.     Existing rights 
> protection mechanisms can be used by the IOC and RC just like other 
> organizations who have rights to names.
>                                                    v.     Reserving the 
> finite list of names recommended by the GAC opens the door to expanding that 
> list to include acronyms, similar strings, etc., and these become even more 
> problematic from an operational and policy perspective.
>                                                   vi.     There are 
> organizations besides the IOC and RC that have legitimate rights to some of 
> the GAC recommended strings.
>                                                 vii.     The complexities of 
> this issue warrant a thorough vetting in a GNSO multi-stakeholder, bottom-up 
> PDP and, because of the complexities and competing interests, a PDP may not 
> be able to be completed before new gTLDs are delegated.
> ·        The work of the IOC/RC discussion group should be reviewed to 
> identify other reasons.
> ·        The RySG is ready and willing to contribute to better refining the 
> rational if there is support for this approach.
> c.      Give the GAC the opportunity to address the concerns expressed in the 
> rationale (i.e., ‘fill in the holes’).
> Many in the RySG would not be disappointed if, even without a PDP, the above 
> resulted in a GNSO recommendation of Discussion Group Approach 3.a:  “Develop 
> recommendations to respond to the GAC proposal by suggesting extending 
> protection for all of the GAC recommended IOC and RCRC names provided there 
> is an exception procedure for allowing names in to-be-defined circumstances.” 
>  But we believe that justification for doing it based on current information 
> has too many weaknesses at this time.
> Chuck
>  
> From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
> Behalf Of Brian Peck
> Sent: Wednesday, July 25, 2012 6:07 PM
> To: gnso-iocrc-dt@xxxxxxxxx
> Subject: [gnso-iocrc-dt] FW: Red Cross/IOC: List of possible approaches to 
> respond to GAC proposal
>  
> Please find attached an updated, corrected version of the document provided 
> below reflecting Avri’s earlier message regarding some initial input from the 
> NCSG.
> 
> 
> ------ Forwarded Message
> From: Brian Peck <brian.peck@xxxxxxxxx>
> Date: Wed, 25 Jul 2012 12:58:16 -0700
> To: "gnso-iocrc-dt@xxxxxxxxx" <gnso-iocrc-dt@xxxxxxxxx>
> Subject: Red Cross/IOC: List of possible approaches to respond to GAC proposal
> 
> To all DT members:
> 
> Please find attached a document that was prepared for and discussed during 
> today’s IOC/RCRC Drafting Team call.  This document briefly summarizes a list 
> of possible approaches that have been proposed to date within the DT for 
> moving forward in responding to the GAC proposal to protect the RCRC and IOC 
> names at the second level in new gTLDS, as well as some initial comments 
> received regarding this list of approaches which was sent to the group on 18 
> July.  
> 
> Please not that this current draft is what was prepared and posted for 
> today’s call and is being provided so that you can go back to your individual 
> groups and solicit comments on which approach(es) your group would support as 
> a way for the DT to move forward.  This draft does not include comments that 
> were raised during the call, we ask that any comments representing your 
> individual groups be shared and sent via email to the list.  
> 
> This is a fluid document and we will be periodically updating and 
> distributing it with any submitted comments on the individual proposed 
> approaches prior to the next scheduled call on 15 August.  Thanks.
> 
> Best Regards,
> 
> Brian
> 
> Brian Peck
> Policy Director
> ICANN 
> 
> 
> 
> ------ End of Forwarded Message