[ALAC] Red Cross/IOC - Questions for Consensus Call - Reply due by September 26th

[Alan Greenberg]

I apologize for the length of this note, but it is necessary to fully 
brief you on an issue that we must come to closure on.

The GNSO Red Cross/IOC Drafting Team has narrowed down the options 
for possible recommendation to the GNSO and has pout out a Consensus 
Call with replies due on September 26. I propose that this be 
discussed on our list prior to the ALAC meeting on September 25th, 
and that a decision be reached at that meeting to allow me to report 
back to the DT at its meeting the following day.

I specifically ask that all ALAC members who will not be able to 
attend the meeting next week make their views known prior to the meeting.

Note that this proposed recommendation seems to generally be in line 
with a motion adopted by the Board New gTLD Program Committee on 
September 13ths, but the Drafting Team had formulated the draft 
proposal well before that date. The gTLD Program Committee resolution 
can be found at 
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13sep12-en.htm.

The proposal has two parts and is as follows.

>1. Whether a PDP is necessary to resolve the the RC/IOC issue. My 
>personal position is that a PDP is not needed to resolve the issue 
>for the first round. A PDP is needed for any following round. A PDP 
>is being considered on the larger IGO issue (which include as a 
>subset the RC/IOC), but it is not yet clear that the GNSO Council 
>will proceed with it (highly likely in my mind). Since it is quite 
>likely that there will be a PDP, but that it will not be complete 
>prior to the first new gTLDs being deployed, the 2nd part of this 
>proposal only makes sense if that PDP does proceed.
>
>2. The Second consensus call item is a proposal originally put forth 
>by J. Scott Evans and endorsed by the Registry SG which recommends 
>the following:
>
>2.a. Recommend a moratorium be placed on the registration of exact 
>matches of the IOC/Red Cross names contained in the GAC 
>recommendation of September 15, 2011 at the second level in the 
>first round of new gTLDs pending results of the PDP covering IGO 
>names, IOC/RC names and other international organizations.  This 
>would provide a back stop if the PDP does not finish in time and 
>would also eliminate the argument that the GNSO is just choosing 
>this approach as a way of avoiding the issue.
>
>2.b. Communicate to the GAC:
>
>2.b.i.   That the GNSO recommends a PDP be initiated as soon as 
>possible to cover IGO names, IOC/RC names any other international 
>organizations.
>
>2.b.11.  A rationale for that position with a particular emphasis on 
>pointing out the things that could be accomplished via a PDP and 
>that would be difficult to adequately do so otherwise.
>
>2.b.iii. That the GNSO welcomes feedback from the GAC as soon as 
>possible on this position.
>
>2.b.iv.  That sincere efforts will be made to expedite the PDP; note 
>that the work that has already been done on this issue should 
>facilitate the process.

I recommend that the ALAC support this recommendation as I have 
qualified it above.

The rationale is as follows:

- in the longer term, it makes sense that such a major issue such as 
protection of IGO (and possible other names such as charities) be 
done under the auspices of a PDP. This is an issue that has come up 
before. The last time in 2007, the specific question was the creation 
of a dispute resolution process that could be used by IGO (since the 
UDRP is for trademarks, it does not apply). Ultimately, after a LOT 
of work was done, the GNSO Council chose not to do any further work 
on this, with the understanding that for new gTLDs, the IGO issue 
would be incorporated into the plans. It was not. If the issue is not 
definitively dealt with now, it will simply come back again. And no 
doubt sooner than the 4 years it took to return this time.

- If we allow the status quo to stand and the RC/IOC names are not 
protected at the 2nd level as new gTLDs are deployed, AND if 
ultimately a PDP decides that the RC and IOC names SHOULD be 
protected at the 2nd level, there will be no practical way to call 
back any names that have been registered in the interim, certainly 
not until they expire. As a result, these organization will have been 
impacted unreasonably. At the very least, they would have to do 
significant defensive registrations. On the other hand, if the names 
are protected and the PDP judges that they do not deserve this 
protection, the names can easily be released at that time.

- In recent statements, the ALAC has been more sympathetic with the 
case of the Red Cross than with the IOC. However, the two are firmly 
linked at this time (although they could be delinked in a future 
PDP), so the only way to offer protection to the RC is to do it to 
both organizations.

- The recommendation is about as conservative as it could be given 
that the organizations wanted protection for a far wide range of 
languages than was originally requested in the GAC letter 
(https://gacweb.icann.org/display/GACADV/2011-09-14-IOCRC-1). And of 
course it is exact matches only and not the more flexible protection 
that they would prefer.

Although not a rationale for doing this, it should be noted that if 
the GNSO either makes no recommendation or takes a more rigid 
position that no additional protections should be granted, it is 
likely (in my opinion) that the Board will do something of this sort 
anyway, creating a very time-and energy-consuming issue with no real benefit.