[At-Large] Is there a Need for a PDP to resolve the IOC/RCRC Issue?

Salanieta T. Tamanikaiwaimaro salanieta.tamanikaiwaimaro at gmail.com
Sun Sep 23 23:43:47 UTC 2012


Dear All,

These are some rough thoughts on whether a PDP is needed to resolve the
IOC/RCRC issue and in lieu of the fact that we may be discussing this
within the ALAC in our upcoming meeting, it will be good to hear your
comments and feedback.

These are my draft submissions and thoughts on the matter, I will finalise
this before the ALAC meeting and resend to the ALAC GNSO Liaison officer
before the ALAC meeting on the September 26, 2012.


Kind Regards,

 Table of Contents

The Issues before the ALAC.
3<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249865>

Retrospection. 3<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249866>

The Idea of Special Protection.
3<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249867>

Special Protection and Exclusivity – IOC/RCRC.
4<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249868>

Challenges for ICANN..
4<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249869>

Potential Anti-Trust Liabilities.
5<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249870>

Relevant Considerations from the Preliminary Issue Report.
6<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249871>

Risk Management and Impact on ICANN..
6<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249872>

Challenges to Development of Objective Criteria and the PDP.
7<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249873>

Community Feedback In Relation to Proposal to offer Special Protection to
the IOC/RCRC Names.
8<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249874>

Legitimacy of the Special Protection Given to IOC and RCRC.
8<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249875>

Narrowing the Exception.
8<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249876>

Annexure 1. 9<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249877>

Annexure 2 GNSO Council Resolution 20120326-1.
12<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_Toc336249878>



* *
*
*

* *

* *
The Issues before the ALAC



This is in response to call for
feedback[1]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn1>from
ALAC Liaison officer, Alan Greenberg to the GNSO on the GNSO Red
Cross/IOC matter. The GNSO has put out a consensus call and is soliciting
responses prior to September 26, 2012.  The context of the request for
feedback is to gather and feed our input as ALAC for the IOC-RC Draft Team
as they prepare their list of recommendations and options to the GNSO.



      I.        Is a PDP necessary to resolve the International Olympic
Committee and the Red Cross Red Crescent Movement issue?



     II.        Should there be a moratorium placed on the registration of
exact matches of 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?


Retrospection

The Generic Names Supporting
Organization[2]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn2>(GNSO)
is responsible for developing and recommending substantive policies
to the ICANN Board in relation to gTLDs. The GNSO Council is responsible
for overseeing the Policy Development Process
(PDP)[3]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn3>
.
The Idea of Special Protection

In assessing whether a PDP is necessary, retrospection is essential. The
idea of protection for the International Olympics Committee (IOC) and Red
Cross/ Red Crescent (RCRC) names at the top and second levels was initially
proposed by the Government Advisory Committee (GAC). The GAC has been
advocating “enhanced protection”  for the IOC and RCRC names at the top and
second levels[4]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn4>as
these “organizations  are protected at both international level
through
international treaties and through national laws in multiple jurisdictions
[5]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn5>”.


The essence of GAC’s proposal to the GNSO is that “ICANN should amend the
new gTLD Registry Agreement and add a new schedule of second level reserved
names where the new schedule should reserve the terms most directly
associated with the IPC and the Red Cross Crescent
Movement[6]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn6>”.
The proposal is also to add “protection to the second level reserved names
is intended to complement the permanent protection of Olympic and Red Cross
at the top level[7]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn7>”.
It follows that any variations to Registry Agreements require the
activation of a Policy Development Process (PDP).


Special Protection and Exclusivity – IOC/RCRC

The ICANN Board (Board) had resolved in 2011, in
Singapore[8]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn8>that
protection would be given IOC- RCRC names
and restricted to the top level in the initial round of the new gTLD
applications until the GNSO and GAC developed policy advice based
on[9]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn9>public
interest.
Challenges for ICANN

The issue of the need for a PDP has been around for around 5 years and the
fact that GNSO dropped the ball on this by not acting on what was
reasonably foreseeable leaves the GNSO and ICANN vulnerable and subject to
possible future litigation in the event that special protection were
afforded to IOC-RCRC  and not to other International Organizations.

The GNSO Issue Report (2007) on Issue of Dispute Handling for IGO Names and
Abbreviation which had recommended the following:-

·         New gTLD agreements could provide for protection of IGO names and
abbreviations as a contractual condition for new gTLDs;

·         Separate Dispute Resolution Procedure be developed for IGO names
and abbreviations as domain names at the second or third level in new gTLDs;

·         A framework be developed for handling objectives or challenges
relating to the IGO names and abbreviations in the upcoming application
rounds for new gTLDs.

Whilst the GNSO Council had approved by supermajority vote a PDP on new
gTLDs with a number of recommendations on September 7, 2007 it notably did
not afford special protection to specific applicants. The GNSO Council
Motion in 2007 did not initiate a PDP on the issues and recommendations
stemming from the 2007 Issue Report.

On 12 April, 2012 GNSO Council resolved that it would request an Issue
Report[10]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn10>to
precede the possibility of a PDP covering the following issues that is
the Definition of the type of organizations that should receive special
protection at the top and second level, if any; and policies required to
protect such organizations at the top and second level. Whilst the
Preliminary GNSO Issue Report on the Protection of International
Organization Names in New gTLDs (Preliminary Issue Report) was published
for comments, the ALAC has still yet to receive the Final Issues Report
referred to in the Preliminary Issue Report has been finalized at the time
the Consensus call is being made on this matter. The Final Issue Report
would  be published following the conclusion of the public
comments[11]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn11>
.

In light of the Final Issue Report not yet been released, we are limited to
relying on the Preliminary Issue Report. The Preliminary Issue Report is
not a substitute for the Final Issue Report and to address the Issues
before the ALAC without the Final report would be premature. In light of
the same, this analysis is confined to the Preliminary Issue Report and is
likely not to address key considerations that may be canvassed in the Final
Issue Report and this Analysis may be subject to revisions following the
release of the Final Issue Report.

The GNSO Council is on record for its intention to restrict the protections
solely for the IOC and RCRC names and noting that there may be a “policy
impact of the protection for the IOC/RCRC for future
rounds[12]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn12>.
The recent Board
Resolution[13]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn13>suggest
that it is impossible to complete the Policy work prior to 31
January 2013 which was the cut-off date given to the GNSO Council by which
they are to advise the Board if there are any reasons pertaining to global
public interest or the security or the stability of the DNS.  The ICANN
Bylaws demands that decisions have to be made by applying documented
policies neutrally and objectively, with integrity and
fairness[14]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn14>and
acting with alacrity and consulting with those affected and remaining
accountable through mechanisms enhancing ICANN’s effectiveness.


Potential Anti-Trust Liabilities

The Honorable Philip S. Gutierrez, United States District Judge on 4 August
2012 *Manwin Licensing International S.A.R.L., et al. v. ICM Registry, LLC,
et al.[15]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn15>
*had ruled that “anti-trust” claims could be filed over controversial .xxx.
This will have implications as well on the development of Policy as
pertaining to the new gTLDs and the matter at hand. Of relevance is this
excerpt[16]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn16>,
see:

*a. ICANN’s Involvement in Trade or Commerce*

*By its terms, the Sherman Act applies to monopolies or restraints of
“trade or commerce.” *

*15 U.S.C. §§ 1, 2.  The identity of a defendant as a nonprofit or
charitable organization does not*

*immunize that organization from antitrust liability**.  NCAA v. Bd. of
Regents of Univ. of Okla.,*

*468 U.S. 85, 101 n.22 (1984) (“There is no doubt that the sweeping
language of § 1 [of the*

*Sherman Act] applies to nonprofit entities.”).  To the contrary, nonprofit
organizations that act in*

*trade or commerce may be subject to the Sherman Act**.  Big Bear Lodging
Ass’n v. Snow*

*Summit, Inc., 182 F.3d 1096, 1103 n.5 (9th Cir. 1999) (“A nonprofit
organization that engages in*

*commercial activity . . . is subject to federal antitrust laws.”).  Rather
than focusing on the legal*

*character of an organization, an antitrust inquiry focuses on whether the
transactions at issue are*

*commercial in nature.  Virginia Vermiculite, Ltd. v. W.R. Grace & Co. –
Conn., 156 F.3d 535,*

*541 (4th Cir. 1998) (“We emphasize that the dispositive inquiry is whether
the transaction is*

*commercial, not whether the entity engaging in the transaction is
commercial.”).  “Courts*

*classify a transaction as commercial or noncommercial based on the nature
of the conduct in*

*light of the totality of surrounding circumstances.”  United States v.
Brown Univ. in Providence*

*in State of R.I., 5 F.3d 658, 666 (3rd Cir. 1993).  In any circumstance,
“[t]he exchange of money*

*for services . . . is a quintessential commercial transaction**.”  Id. [My
own underlining]*

* *

This ongoing matter highlights the vulnerability of ICANN with the new
generic top level domain names as it is exposed to possible anti- trust
liability. It follows that there has to be a wise stewarding of the
processes.
Relevant Considerations from the Preliminary Issue Report

ICANN Staff had advised that in the event that the GNSO Council were to
initiate a PDP on the special treatment of IOC/RCRC or in examining that
the Working Group should:-

·         evaluate the breadth and scope of protections granted under these
Treaties and International
law[17]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn17>
;

·         enable the community to give feedback on the criteria for
protection and particularly whether these should include all International
Organizations, or all International Organizations which includes
Multinational Corporations or International Organizations that are not for
profit and are protected under multiple international treaties or statutes;

·         quantify entities that may need special protection and empirical
analysis as a precursor for PDP.

·         explore the exceptions to the “Exclusivity” and the spectrum of
exclusivity eg. Limited exclusivity noting the US example of prior use in
relation to a statute codifying protection of the Red Cross emblem save for
American Red Cross and how Johnson & Johnson’s trademark were using the Red
Cross in 1887 and have held exclusive rights to register the mark on its
commercial products for over a hundred years;

In its organizing Articles, ICANN has agreed that it would appropriately
consider the need for market competition and the protection of rights in
names and other intellectual property when approving TLDs and registries.
The GNSO Council recognizes that that the exclusive protection given to
IOC-RCRC may have policy implications as evident in various discussions and
resolutions.**
Risk Management and Impact on ICANN

A PDP is necessary given that the Preliminary Issues Report has highlighted
the numerous International organizations who may also meet the “GAC
proposed criteria”, that is, that are already protected under multiple
treaties and domestic regulation and judging from some of the comments
during the Public comment period, that many legal counsels from these
International Organizations who have made joint representations to ICANN
that they would fully intend that this should apply to them as well. The
Core Values of ICANN amongst which includes “fairness” and “transparency”
demands that treatment is properly applied. It goes without saying that a
Policy Development Proposal is required. There are lessons to be learnt
from the *Manwin Licensing International S.A.R.L., et al. v. ICM Registry,
LLC, et al* and it highlights the risk of potential anti- trust claims
stemming from those who may allege antitrust injury, conspiracy between IOC
and Red Cross Red Crescent to restrain trade or monopolize a relevant
market, anticompetitive or exclusionary conduct by IOC and Red Cross. Given
that the Preliminary Issues Report state that there are 5000
Inter-Governmental Organizations (IGOs), 35,000 Non-Governmental
Organizations (NGOs) and where it is still uncertain what the criteria is,
it follows that one can safely assume that the estimated “risk” stemming
from potential Anti-Trust claims are serious business risks that could
jeopardize the security and stability of the management of the DNS. To
assess the level of risks, ICANN should create a model simulation based on
these numbers and average costs of litigation, settlements, evaluate health
of ICANN by conducting a thorough financial analysis using a host of ratios
to see whether these are sustainable in the long run.

* *
Challenges to Development of Objective Criteria and the PDP



 The Preliminary Issue Report have pointed out issues to explore for the
PDP. This would include the need to develop objective criteria for
International Organizations that would qualify for protection. **

The ICANN Bylaws are very clear about GNSO Policy Development
Processes[18]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn18>.
The minimum requirements[19]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn19>include
having a Final Issue Report (which still has yet to be furnished),
formal initiation of the process by the Council, formation of a Working
Group or other designated work method, Initial Report by the Group, final
report produced by the Working Group or other methods which is forwarded to
the GNSO Council, Council approval of PDP Recommendations contained in the
Final Report by the required thresholds, Recommendation and Final Report
that is forwarded to the Board through a Recommendations Report which is
approved by the Council and finally Board approval of the PDP
recommendations.

Given the ICANN Board
Resolution[20]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn20>which
approved the gTLD Program in 2008, it would have been reasonable to
expect that since the GNSO Council had prior warning stemming from the 2007
Issue Report that there would be a need for a PDP.

It has become an accepted process within the GNSO that prior to the GNSO
Council formulating decisions that they would have an Issue Report.

The ICANN Board in its recent meeting had highlighted that if there are
protections for the second level that in order to be effective they are to
be in place prior to the delegations of the first new
gTLDs[21]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn21>.
It would appear that the ICANN Board in stating that the Policy would not
be ready before January 13,
2012[22]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn22>appears
to be suggesting that second level protections for the first new
gTLDs especially if these protections are to include adding a new schedule
of second level reserved names where the new schedule should reserve the
terms most directly associated with the IPC and the Red Cross Crescent
Movement.

It is disturbing that the Final Issues Report is not in circulations as
yet. The Board have indicated though that for any protection to be
effective that they have to be in place prior to the delegation of the new
gTLDs.





Whilst the protections for the IOC and Red Cross and Red Crescent are in
place at the top level, and the Board is wise to favour a conservative
approach as far as protection of the second level domain names are
concerned.
Community Feedback In Relation to Proposal to offer Special Protection to
the IOC/RCRC Names



It is also important to review the Report of comments that were made in
response to the call for comments from 2 March 2012 to 14 April 2012 on the
Proposal to Protect the International Red Cross and International Olympic
Committee Names at the Top Level in New gTLDs. It is notable that of the
seventeen comments made, 14 comments opposed the protection for diverse
reasons. It is also worth noting that six out the seven process related
submissions were undermined in the manner through which the IOC/RCRC
Drafting Team developed its recommendations. Without going into the merits
of the discussions generated from the Report as it would be premature
without access to the Final Issue Report, it is reasonable to foresee that
there are diverse challenges that would exist if these special protection
was to trickle down to the second level.


Legitimacy of the Special Protection Given to IOC and RCRC



I am aware of the Policy implications of creating an exception. However, I
have had more time to mull, muse and reflect on the matter. I realised that
the legitimate fear of creating an exception that could open the floodgates
for all kinds of protection of "names" and "marks" that could possibly make
the reservation of names policy or practices controversial and extremely
difficult. The focus of my reaching this conclusion is based on my view of
the end users and what global public interest is.
Narrowing the Exception

I find that there are end users in many parts of the world whose lives have
been saved through the generous work of humanitarians such as the
International Red Cross.  Whilst I believe that International Red Cross
should be given the privileges and protections afforded to it, the same
should not be given to the International Olympics Committee as these are
two different beasts. Both the IOC and RCRC were given the opportunity to
respond. In instances where the exception is granted, it must be an
extremely narrow one and my view is that the GAC proposal that highlights
the twin criteria can and should be further narrowed and restricted to
universal humanitarian assistance.

It is for this reason that I would recommend that the PDP for IOC and RCRC
be separated.


Annexure 1

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.


Annexure 2 GNSO Council Resolution
*20120326-1**[23]*<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftn23>
**

Motion to recommend to the Board a solution to protect certain Red
Cross/Red Crescent (RCRC) and International Olympic Committee (IOC) names
at the Top Level in New gTLDS

Whereas, the Board Resolution 2011.06.20.01, authorized “the President and
CEO to implement the new gTLD program which includes . . . incorporation of
text concerning protection for specific requested Red Cross and IOC names
for the top level only during the initial application round, until the GNSO
and GAC develop policy advice based on the global public interest, . . ." (
http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm)

Whereas, the IOC/RC Drafting Team established by the GNSO Council has
considered a number of different options with respect to protections of
both the IOC and the RCRC terms at the top level and has proposed a
solution to modify the ICANN staff’s implementation of the Board Resolution
as reflected in the Applicant Guidebook dated January 12, 2012 (
http://newgtlds.icann.org/en/applicants/agb);

Whereas, the IOC/RC Drafting Team has collaborated with the Government
Advisory Committee (GAC) during its deliberations in an attempt to identify
a solution that addresses GAC concerns;

Whereas, this proposed solution was posted for public comment on 2 March
2012 on an expedited basis as a matter of urgency in order to enable the
Board to consider its adoption for the first round of new gTLD
applications, which is scheduled to close on 12 April 2012;

Whereas, the GNSO is mindful that implementation of the Board’s resolution
is needed to be available before the end of the Application Window;

Whereas, the GNSO intends that these recommendations be solely limited to
the IOC and RCRC;

Whereas, the GNSO recognizes that there might be a policy impact of the
protection for the IOC/RCRC for future rounds and at the second level;  and

Whereas, therefore, the IOC/RC Drafting Team recommends that the GNSO
Council adopt this proposed solution as a recommendation for Board
consideration and adoption at its meeting in Costa Rica for the application
period for the first round of new gTLD applications’.

NOW THEREFORE, BE IT:

Resolved, that the GNSO Council adopts the following three recommendations
of the IOC/RC Drafting Team:

Recommendation

1: Treat the terms set forth in Section 2.2.1.2.3 as “Modified Reserved
Names,” meaning:

a) The Modified Reserved Names are available as gTLD strings to the
International Olympic Committee (hereafter the “IOC”), International Red
Cross and Red Crescent Movement (hereafter “RCRC") and their respective
components, as applicable.

b) Applied-for gTLD strings, other than those applied for by the IOC or
RCRC, are reviewed during the String Similarity review to determine whether
they are similar to these Modified Reserved Names. An application for a
gTLD string that is identified as confusingly similar to a Modified
Reserved Name will not pass this initial review.

c) If an application fails to pass initial string similarity review:

i. And the applied-for TLD identically matches any of the Modified Reserved
Names (e.g., ".Olympic" or ".RedCross"), it cannot be registered by
anyone  other than the IOC or the RCRC, as applicable.

 ii. If the applied-for TLD is not identical to any of the Modified
Reserved Names, but fails initial string similarity review with one of
Modified Reserved Names,  the applicant may attempt to override the string
similarity failure by:

1. Seeking a letter of non-objection from the IOC or the RCRC, as
applicable; or

2. If it cannot obtain a letter of non-objection, the applicant must:

a. claim to have a legitimate interest in the string, and demonstrate the
basis for this claim; and

b. explain why it believes that the new TLD is not confusingly similar to
one of the protected strings and makes evident that it does not refer to
the IOC, RCRC or any Olympic or Red Cross Red Crescent activity.

3. A determination in favor of the applicant under the above provision
(ii)(2) above would not preclude the IOC, RCRC or other interested parties
from bringing a legal rights objection or otherwise contesting the
determination.

4. The existence of a TLD that has received a letter of non-objection by
the IOC or RCRC pursuant to (ii)(1), or has been approved pursuant to
(ii)(2) shall not  preclude the IOC or RCRC from obtaining one of the
applicable Modified Reserved Names in any round of new gTLD applications.

Recommendation 2:    Protect the IOC/RCRC Terms in as many Languages as
Feasible

The GAC has proposed that the IOC and RCRC “names should be protected in
multiple languages---all translations of the listed names in languages used
on the Internet…The lists of protected names that the IOC and RC/RC have
provided are illustrative and representative, not exhaustive.”  The
Drafting Team recommends that at the top level for this initial round, the
list of languages currently provided in Section 2.2.1.2.3 of the Applicant
Guidebook are sufficient.

In addition, the Drafting Team also notes that even in the unlikely event
that a third party applies for an IOC or RCRC term in a language that was
not contained on the list, the IOC or RCRC, as applicable, may still file
an applicable objection as set forth in the Applicant Guidebook.

Recommendation 3:    Protections must be reviewed after the first round and
that review should include consideration of changing the language to
general requirements rather than naming specific organizations.

In its proposal, the GAC has recommended that the protections for the IOC
and RCRC should not just apply during the first round of new gTLDs, but
should be a permanent protection afforded for all subsequent rounds. The
Drafting Team recognizes that permanently granting protection to the IOC
and RCRC may have policy implications that require more work and
consultation so that protections may be reviewed.

Resolved, that the GNSO submits this proposed solution for Board
consideration and adoption at its next meeting as a recommended solution to
implement Board Resolution 2011.06.20.01 for implementation in the first
round of new gTLD applications.







------------------------------

[1]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref1>Email
by Alan Greenberg to ALAC on September 19, 2012

[2]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref2>Article
X, section 1 of ICANN Bylaws accessed via
http://www.icann.org/en/about/governance/bylaws#X as at 20th September, 2012

[3]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref3>Article
X, section 1 of ICANN Bylaws

[4]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref4>ibid

[5]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref5>ibid

[6]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref6>Protecting
the International Olympic Committee and Red Cross/Red Crescent
Names in New GTLDs in
https://gacweb.icann.org/download/attachments/1540128/GAC+advice+on+IOC+and+Red+Cross+Sep.+2011.pdf?version=1&modificationDate=1317031625000

[7]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref7>ibid

[8]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref8>

[9]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref9>
http://gnso.icann.org/meetings/minutes-­‐gnso-­‐20dec07.html



[10]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref10>
http://gnso.icann.org/en/resolutions#20120326-1

[11]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref11>See
page 1 of the Preliminary
GNSO Issue Report on the Protection of International Organization Names in
New gTLDs

[12]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref12>
http://gnso.icann.org/resolutions#20120326-1

[13]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref13>
(NG2012.09.13.01)
in
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13sep12-en.htm

[14]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref14>Article
1 Section 2 (8),(9), (10) of ICANN Bylaws

[15]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref15>CV
11-9514 PSG (JCGx), United States District Court, Central District of
California, see: http://pdfserver.amlaw.com/tal/icann.pdf

[16]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref16>ibid

[17]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref17>Page
25 of the Preliminary Issue Report

[18]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref18>Annexure
A of ICANN Bylaws, see:
http://www.icann.org/en/about/governance/bylaws#AnnexA

[19]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref19>ibid

[20]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref20>ICANN
Board Resolution 20
th June, 2011,
http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm

[21]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref21>
(NG2012.09.13.01)
in
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13sep12-en.htm

[22]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref22>ibid

[23]<file:///C:/Users/Sala/Documents/ICANN/GNSO/IOC.RCRC/Draft%20Response%20to%20ALAC%20GNSO%20Liaison%20IOC%20RCRC%2024.9.12.docx#_ftnref23>
http://gnso.icann.org/en/resolutions#20120326-1




-- 
Salanieta Tamanikaiwaimaro aka Sala
P.O. Box 17862
Suva
Fiji

Twitter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
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