Past ICANN and US comments to WIPO on the topic of special rights for IGOs

[George Kirikos <gkirikos@xxxxxxxxx>]

Supplemental Comment
Submitted by: George Kirikos
Company: Leap of Faith Financial Services Inc.
Website: http://www.leap.com/
Date: April 14, 2014 


This horse has been beaten to death in the past, yet IGOs have selective 
memories. For example, in 2002 (yes, 12 years ago) there was a WIPO report at:

http://www.wipo.int/edocs/mdocs/sct/en/sct_s2/sct_s2_8.pdf


where ICANN itself made the following statement (paragraph 46, page 9):

"46.    The Representative of the Internet Corporation for Assigned Names and 
Numbers (ICANN) noted that on issues of international law, ICANN can only rely 
on existing international law and, in this respect, takes guidance from the 
international community, including WIPO. Earlier made observations are correct. 
ICANN cannot function as a de facto trademark office. The Representative noted 
that developments in the DNS, and specifically applications above the DNS, were 
rapid and not possible to predict, and that it was ****important to take 
account only of accepted international law and not risk the creation of new 
law, with possibly unforeseen results in the future.*****"

(emphasis added) This is consistent with my earlier comments that ICANN should 
not be creating new laws:

http://forum.icann.org/lists/comments-igo-ingo-crp-prelim-10mar14/msg00000.html


The section starting from paragraph 60 (on page 11) specifically addressed 
names and acronyms of IGOs.

Note paragraph 64:

"The Secretariat noted that the Annex referred to by the Representative of the 
AIPLA referred to both the above cases, that not all such registrations were 
illegitimate, and that this illustrated the complexity of the questions raised 
by such registrations and use of the names and acronyms of IGOs in the DNS. The 
Secretariat further noted that the Paris Convention, Article 6ter, establishes 
guidelines as to what constituted misleading use of such names and acronyms of 
IGOs, and indicated that the protection to be granted to them was qualified in 
two ways, namely that ****States were not required to protect such identifiers 
if their use did not suggest to the public a connection or authorization by the 
concerned organization, or if such use was probably not of such a nature to 
mislead the public as to such a connection.*****"

(emphasis added)

Wow! If that's not a "smoking gun", I don't know what is! Let me repeat, the 
Secretariat itself stated "States were not required to protect such identifiers 
if their use did not suggest to the public a connection or authorization by the 
concerned organization, or if such use was probably not of such a nature to 
mislead the public as to such a connection."

There's been a lot of misinformation charactering Article 6ter (which I 
addressed in my earlier comments), yet there you have it from the Secretariat 
itself!

Paragraph 67 (page 12) represented the position of the United States, namely:

"The Delegation of the United States of America expressed its appreciation to 
the Secretariat for its work on framing the issues related to IGOs, but stated 
that the Special Session of the SCT should not force any solution on the DNS, 
which is primarly regulated by private contractual agreements between ICANN, 
the registry operators, registrars and registrants. The Delegation noted that 
any additional obligations or liabilities must be agreed upon by ICANN and 
contractual in nature in order to be effective. The Delegation noted that the 
outcome of this Special Session would be a recommendation to ICANN and that it 
remained for the ICANN Board to decide upon any action after consultation with 
its consituent bodies. The Delegation stated that the Special Session of the 
SCT should not act as a government for the Internet, but that issues of 
governance should be handled by each government for its own community, applying 
national laws and policies and
 enforcing rights specific to each country. While noting the jurisdictional 
issues raised by the Internet, the Delegation stated that this did not obviate 
the role of national systems in regulating conduct in this context. The 
Delegation expressed its view that the solution could not be found in creating 
new systems to apply to each interest group involved in the Internet, but 
through resort to the ICANN processes and in reliance upon contractual 
agreement, or through the ccTLDs which are subject to national law. *****The 
Delegation noted that the creation of a new dispute resolution procedure for 
IGOs would create new rights and obligations beyond those established by 
Article 6ter of the Paris Convention. It was noted that, in the United States 
of America, IGOs already have protection through the opportunity to challenge 
in court the unauthorized use of their names and acronyms, or to oppose the 
registration of such identifiers on trademarks where such
 registration would amount to misuse.****** The Delegation stated that a sui 
generis system of protection for IGOs would establish a right not offered to 
other entities, and that ****the absence of a right to appeal to the courts 
would not meet domestic due process requirements, which are not satisfied by 
the proposed system of appeal to an appeal panel. In this respect, the 
Delegation noted that the availability of a de novo appeal to the courts 
provided the only real check on the power of UDRP panelists and safeguard 
against abuse of the system, and should not be removed in function of the type 
of entity that brought the complaint. The Delegation remarked that certain 
sovereign States had waived their immunity to bring UDRP challenges, and stated 
that IGOs should not receive better treatment than such States.******

(emphasis added)

Wow, yet another "smoking gun" to demonstrate how absurd the position of IGOs 
is. Let me repeat the highlighted portion, so that they cannot be ignored by 
the community:

"The Delegation noted that the creation of a new dispute resolution procedure 
for IGOs would create new rights and obligations beyond those established by 
Article 6ter of the Paris Convention. It was noted that, in the United States 
of America, IGOs already have protection through the opportunity to challenge 
in court the unauthorized use of their names and acronyms, or to oppose the 
registration of such identifiers on trademarks where such registration would 
amount to misuse."

Did you see that? "A new dispute resolution procedure for IGOs would create new 
rights and obligations beyond those established by Article 6ter of the Paris 
Convention" --- NEW RIGHTS, which are BEYOND those established by Article 6ter. 
It doesn't get any more plain than this.

Furthermore, the US delegation stated that IGOs *already have protection 
through the opportunity to challenge in court".... yes, that's consistent with 
my prior comments on this topic.

And, the US delegation also stated "*the absence of a right to appeal to the 
courts would not meet domestic due process requirements." Due process is very 
important, yet IGOs want to instead compel domain registrants to give up their 
due process rights, and instead submit to a "kangaroo court" where the rules 
are tilted in favour of IGOs.

The US delegation also stated that: "The Delegation remarked that certain 
sovereign States had waived their immunity to bring UDRP challenges, and stated 
that IGOs should not receive better treatment than such States."

Amen. Indeed, the City of Paris, for example, was ordered by a US court to pay 
USD $100,000 for the reverse hijacking of a domain name:

https://domainnamewire.com/2012/09/17/city-of-paris-ordered-to-pay-100k-for-reverse-domain-name-hijacking/


That exists as a safeguard against abuse of the UDRP system, and IGOs want to 
remove those kinds of safeguards (presumably so that they can abuse the rights 
of domain name registrants, without accountability, via their proposed kangaroo 
courts).

Note the comments of Canada (paragraph 70, page 13) which mentioned that:

"70.    The Delegation of Canada thanked the Legal Counsel of the United 
Nations for his statement and highlighted the first principles of the 
organization of the Internet, namely that measures needed to be efficient, cost 
effective and administratively non-burdensome. The Delegation raised the 
question whether the creation of a separate administrative dispute resolution 
procedure for IGOs would lead to the creation of similar system with respect to 
all identifiers, consequently not respecting the first principles mentioned."

Amen to that, too, that creation of special rules and procedures for IGOs would 
not respect the principles of measures being efficient, cost effective and 
administratively non-burdensome.

Even the International Federation of Industrial Property Attorneys noted, in 
paragraph 83 that:

"...noting its concern with the proposal that an arbitral forum would replace 
recourse to appeal to the national courts, and establish a framework that would 
override sovereign national law. The Representative remarked that any system 
which removed the right to challenge or defend in a national court was better 
dealt with through the treaty process. The Representative also referred to the 
intervention of the Representative of the OECD suggesting it was no answer to 
suggest that reticence on the part of domain name holders to appear in legal 
proceedings, meant no recourse to national courts was necessary. The 
Representative noted that due process must be ensured."

Once again, the importance of due process in NATIONAL COURTS was paramount.

Note the US delegation in paragraph 85 strongly repeated its prior statements 
that:

"The Delegation reiterated its position that creating a protection mechanism 
for the names and acronyms of IGOs without recourse to national courts would 
constitute the creation of a new right."

ICANN should not be in the business of creating *new rights* for IGOs, or 
anyone else. Recourse to national courts is an essential right to ensure due 
process and accountability. 

There you have it. After 12 years, certain obscure IGOs attempt to keep this 
matter "alive", despite the overwhelming lack of any hard evidence that there 
is any substantial abuse of the names and acronyms of IGOs. ICANN should cease 
wasting the time of the community on this micro-issue, until the IGOs 
demonstrate, in the words of the Affirmation of Commitments, that their 
proposals are in the public interest and "not just the interests of a 
particular set of stakeholders":

http://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30sep09-en.htm
 (paragraph 4)


Indeed, IGOs, on this issue, are truly "a group of participants that engage in 
ICANN's processes to a greater extent than Internet users generally" and are 
attempting to subvert ICANN policymaking in furtherance of their unsupported, 
radical and extremist views, to the detriment of the public interest.

I will have further comments during the "Reply" period, but wanted to make sure 
the above history lesson was submitted to the public record before the end of 
the normal comment period.

Sincerely,

George Kirikos
http://www.leap.com/