comments from Spain

["Campillos Gonzalez, Gema Maria" <GCAMPILLOS@xxxxxxxxxx>]

Dear ICANN,

Although the measures proposed to mitigate confusion with country codes fall 
short of what GAC has recently advised, they show sensitivity to concerns 
expressed by Governments and go some way in addressing them. We commend ICANN 
in particular for including phased allocation periods as one of those measures, 
since in our judgement, it is the most effective one of the set.

In effect, there is a mismatch between the proposed measures and the actions 
recommended by the GAC at its Helsinki Communiqué (30th June, 2016), which by 
unanimity has advised the Board to "urge the relevant Registry or the Registrar 
to engage with the relevant GAC members when a risk
is identified in order to come to an agreement on how to manage it or to have a 
third-party assessment of the situation if the name is already registered." 
Although the actual proposal states that "In addition to the measures 
identified below, in accordance with advice issued in the GAC Helsinki 
Communiqué, ICANN would "urge the relevant Registry or the Registrar to 
[...]".", the announcement posted on 
https://www.icann.org/public-comments/proposed-measures-two-char-2016-07-08-en 
states: "Additionally, on 30 June 2016, the Governmental Advisory Committee 
(GAC) issued advice in its GAC Helsinki Communiqué [PDF, 328 KB] regarding 
two-letter country/territory codes at the second level, which is subject to 
further discussions between the ICANN Board and the GAC."

Given that the two processes (public comment period on the proposed measures 
and Board´s consideration of GAC advice on the issue)are running in parallel, 
it would be necessary to synchronize the assessment of comments submitted and 
GAC advice so as to avoid that effectiveness of GAC advice is preempted by a 
decision made only on the merits of the proposed measures and public comments 
received (with the exclusion of GAC Advice).

Turning to the details of the measures suggested, we submit the following 
questions and considerations:


-          What is the "applicable  country-code manager or government" to be 
granted priority for registration and advanced notice of the start of the 
phased allocation period? The ones that have made objections to the release of 
2-letter codes (and only for the domain names objected to) or all countries and 
ccTLD managers?



-          What concept of confusion should the Registry Operator take into 
account when examining reports of abuse? The one included in its registration 
policy (which limits confusability to false allegations of affiliation with a 
government or ccTLD manager or the larger one used in Spec 5, Section 2 of the 
base Registry Agreement? The first notion is so restrictive that if it is to be 
retained we would recommend directing all registrants of such names to display 
a clear notice on their websites (or the websites identified by the domain name 
in question) disassociating themselves from the corresponding national public 
authorities or ccTLD managers. Not doing so and using the name for purposes 
related to the country at issue should carry a presumption of confusion.



-          Registration policies should make the registrant or its business 
accountable for confusability the use of the domain name in websites raises 
with the country code, even when the domain name holder has contracted (or 
otherwise consented to) the use of the domain name to third parties.



-          Registry Operators should investigate complaints at the request of 
the relevant ccTLD manager too.



-          The text should include an indication of possible commensurate 
albeit effective measures Registry Operators should take in case they conclude 
the use of the domain name causes confusion with the country code. They are not 
specified in article 2.8 of the base Registry Agreement either.

Best regards,

Gema Mª Campillos González
Subdirectora General de Servicios de la Sociedad de la Información
Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información

Capitán Haya 41 | 28020 - Madrid
Tel:      +34 91 346 15 97
email:   gcampillos@xxxxxxxxxx<mailto:gcampillos@xxxxxxxxxx>

[Descripción: cid:image001.png@01CCFB9E.61887880]

Este mensaje se dirige exclusivamente a su destinatario y puede contener 
información privilegiada o confidencial. Si no es Vd. el destinatario indicado, 
queda notificado de que la lectura, utilización, divulgación y/o copia sin 
autorización está prohibida en virtud de la legislación vigente. Si ha recibido 
este mensaje por error, le rogamos que lo destruya y notifique el hecho a la 
dirección electrónica del remitente.

This message is intended exclusively for its addressee and may contain 
information that is CONFIDENTIAL and protected by a professional privilege or 
whose disclosure is prohibited by law. If you are not the intended recipient 
you are hereby notified that any read, dissemination, copy or disclosure of 
this communication is strictly prohibited by law. If this message has been 
received in error, please immediately notify us via e-mail and delete it.