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

["Lanre Ajayi" <lanre@xxxxxxxxxxxx>]

All,

 

 I would like to express my preference for option 5, which is to go through
a PDP to consider possible additional protections for international
organizations. I believe this has the possibility of creating a standardized
criteria for deciding which organizations deserve additional protections and
creates a level playing field for all the organizations that deserve it.
While it may be true that PDP option could take fairly long time, I think
the earlier we focus on this option, the sooner we get it done. 

 

Best regards,

 

Lanre Ajayi

 

 

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx]
On Behalf Of Thomas Rickert
Sent: Wednesday, August 22, 2012 10:53 AM
To: Neuman, Jeff
Cc: Gomes, Chuck; Brian Peck; gnso-iocrc-dt@xxxxxxxxx
Subject: Re: [gnso-iocrc-dt] Red Cross/IOC: List of possible approaches to
respond to GAC proposal

 

Jeff, all,

I propose that we discuss Chuck's comments on the phone later, but I would
like to briefly reply to Jeff as he will not be able to make the call.

 

 

Am 22.08.2012 um 11:01 schrieb Neuman, Jeff:





All,

 

I just wanted to offer my personal (non-chair) feedback on this although I
will not be able to make the call today.  Options 1 and 5 are not mutually
exclusive and I believe should be considered as a joint option if the group
is leaning towards option 1. 

 

Recall option 1 is maintain the status quo (no changes to reserved names
schedule) and option 5 is to consider possible additional protections as
part of broader PDP for international organization.  So, in essence, it is
maintain the status quo for now, but include this in the broader PDP.

 

I agree that these could or should be combined.





 

I do also have some questions on Thomas’ points.

 

1.        Thomas states:  “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.”  I actually do not believe this
is a fair statement nor accurate in the new world of the new gTLDs nor
really relevant when looking at the issue of reserving the exact matches at
the second level.  Yes, when asked to provide evidence of abuse, the IOC
provided evidence of marks that are similar or combined.  But one of the
reasons could be that all of the actual marks themselves were registered by
the IOC in the land rushes/Sunrise processes of the other TLDs.  Thus, since
they already owned the identical names, then there could not by definition,
be any current abuse.  This doesn’t dilute the argument against adopting
options 1 or 5, but rather is just an opinion that we should not be issuing
any finding about where abuse takes place.

 

We are discussing potential protections for identical matches now. ICANN is
already requiring certain RPMs to be implemented by the new registries. In
my view the risk of identical names being taken by third parties is
addressed by these new mechanisms - at least this risk also exists for many
other rights holders. Even if your assumption were correct that identical
matches do not constitute issues due to the fact that the organizations in
question have registered them, I guess it is fair to put the issue in
perspective. The GAC may (or may not) believe that by following their
request, we would solve the issue of the IOC / RCRC designations being
abused. However, I got the impression that similar strings or combined
strings outnumber the identical strings by far. I deem it necessary to
clarify that even if the GNSO did follow the request, we would not solve the
issue, but only address that part of the issue (identical names) that ICANN
has already responded to with new RPMs/DRMs.

 





 

2.       While the legal case in Germany is interesting, as another lawyer,
I am not sure I find it to be particularly relevant when considering the
exact matches in the domain name context.    We, as a group, are not looking
at whether to add “olympicdiscounts” to the reserved names list, but rather
just “Olympic.”  I am not familiar with German law, but I would presume that
if the contact lens dealer changed its name to just “Olympic”, and
advertised its new name as “Olympic” the case may not have turned out the
same.  Nor am I so sure that a domain name would be viewed merely as a
promotional use vs a designation of origin.

 

 

I guess it is relevant as we are not talking about olympicdiscounts.TLD, but
I could imagine olympic.discount or other combinations that might be legal
to use. 

Without a profound legal analysis, I guess it would not be appropriate to
move forward. Also, the would be many follow-up question, such as why - if
any - an exemption procedure is needed for a use that is permitted by law in
the first place and who controls such process, to name only two. 

 

 

I hopt that even if you might not agree with my statements that this helped
clarifying my points.

 

Best,

Thomas




I agree with the other points – Namely, that:

1.        We need to ensure that the marks contained within the GAC list are
all eligible for protection under the existing rights protection mechanisms
and dispute processes.

2.       We can recommend that registries should be encouraged to provide
additional protections to these organizations where applicable, including
maintaining these marks on a reserved list; and

3.       A concise summary of the discussions and considerations by the
group (at both the top and second levels) should be drafted.

 

Jeffrey J. Neuman 
Neustar, Inc. / Vice President, Business Affairs




 

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx]
On Behalf Of Gomes, Chuck
Sent: Tuesday, August 21, 2012 6:01 PM
To: Thomas Rickert
Cc: Brian Peck; gnso-iocrc-dt@xxxxxxxxx
Subject: RE: [gnso-iocrc-dt] RE: Red Cross/IOC: List of possible approaches
to respond to GAC proposal

 

Thanks for the feedback Thomas.  Please see my responses below, including a
couple questions.

 

Chuck

 

From: Thomas Rickert [mailto:rickert@xxxxxxxxxxx] 
Sent: Tuesday, August 21, 2012 4:39 PM
To: Gomes, Chuck
Cc: Brian Peck; gnso-iocrc-dt@xxxxxxxxx
Subject: Re: [gnso-iocrc-dt] RE: Red Cross/IOC: List of possible approaches
to respond to GAC proposal

 

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. [Gomes, Chuck]  Should I take this
to mean that you would support the approach I described from the RySG, i.e.,
recommending that the Council inform the GAC that option 1 is the current
position of the GNSO Council, provide a rationale for that position
(expanded by the discussion group) and ask the GAC to provide any additional
information they might want to provide for Council consideration?

 

It would be imperative to write a comprehensive rationale.[Gomes, Chuck]
Definitely agree.   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[Gomes, Chuck]  I would word
this a little differently.  There is a GNSO approved policy for introducing
new gTLDs  that includes a list of reserved names that ‘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[Gomes, Chuck]  I don’t understand what you
mean here.  Please explain.

- 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. [Gomes, Chuck]  Are you suggesting that this be part of the
discussion group recommendation to the Council?  I am fine with that but
want to make sure that is your intent.

[Gomes, Chuck] If the discussion group decides to pursue this approach
further, I encourage others to add to the rationale.

 

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. [Gomes, Chuck]  Agreed, although I think we should make it as
concise as possible, while still being thorough.

 

 

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 <x-msg://2873/brian.peck@xxxxxxxxx> >
Date: Wed, 25 Jul 2012 12:58:16 -0700
To: "gnso-iocrc-dt@xxxxxxxxx <x-msg://2873/gnso-iocrc-dt@xxxxxxxxx> "
<gnso-iocrc-dt@xxxxxxxxx <x-msg://2873/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

 

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