[PC-NCSG] Fwd: [council] RE: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group"
Stephanie Perrin
stephanie.perrin
Fri Oct 7 01:33:38 EEST 2016
and PHil has reacted already....
SP
-------- Forwarded Message --------
Subject: [council] RE: Board reply letter on IGO/RC issues and proposal
on IGO acronyms protection from the IGO "small group"
Date: Thu, 6 Oct 2016 22:22:50 +0000
From: Phil Corwin <psc at vlaw-dc.com>
To: Mary Wong <mary.wong at icann.org>, GNSO Council List
<council at gnso.icann.org>
CC: Steve Crocker <steve.crocker at board.icann.org>, Chris Disspain
<chris at disspain.uk>, bruce.tonkin at melbourneit.com.au
<bruce.tonkin at melbourneit.com.au>, Markus Kummer
<markus.kummer at board.icann.org>, Becky Burr <Becky.Burr at neustar.biz>,
board-ops-team at icann.org <board-ops-team at icann.org>
For the benefit of Board members, I have just sent the following email
to members of the GNSO Council:
Fellow Councilors:
As Co-Chair of the Working Group reviewing Curative Rights Processes
(CRP) for International Intergovernmental Organizations (IGOs), I feel
it incumbent to provide my initial reaction to this Board letter. In
doing so I note that transmission of the letter has been delayed until
after the completion of the IANA transition, and that the
post-transition role of governments within ICANN was a central
controversy surrounding the transition.
The CRP WG has labored for the last two years to develop a report and
recommendations that are objective and based in fact and relevant law.
In order to assure that our conclusions were sound, we suspended our
work for nearly one year in order to locate and secure the services of a
legal expert on the central subject of the generally recognized scope of
IGO sovereign immunity.
During this period we continually urged members of the GAC, and IGOs, to
participate in our WG. That participation was so sporadic that it
amounted to a near-boycott, and when IGO representatives did provide any
input they stressed that they were speaking solely as individuals and
were not providing the official views of the organizations that employed
them. Of course, why should they participate in the GNSO policy
processes when they are permitted to pursue their goals in extended
closed door discussions with the Board, and when the Board seeks no
input from the GNSO in the course of those talks?
Turning to the relevant substance of the Board letter and the attached
IGO ?Small Group? Proposal, I note that this Proposal statement is
demonstrably incorrect?
The IGO-GAC-NGPC small group that has been discussing the topic of
appropriate IGO protections, based on the NGPC?s initial proposal of
March 2014, agree that the following general principles should underpin
the framework for any permanent solution concerning the protection of
IGO names and acronyms in the domain name system:
(1)*The basis for protection of IGO acronyms should not be founded in
trademark law, as IGOs are created by governments under international
law and are in an objectively different category of rights-holders;
*(Emphasis added)
In fact, our WG found that many IGOs have trademarked their
organizational names and acronyms and have successfully utilized the
UDRP. Further, and more relevant, Article 6ter of the Paris Convention
provides IGOs with protection of their names and acronyms _within the
trademark law systems of all Convention signatories, as well as all
members of the World Trade Organization_, with such protection available
through a simple registration procedure with WIPO. So, contrary to the
statement quoted above, the basis for IGO acronym protections has
already been linked to trademark law.
Turning to the relevant portion of the IGO Proposal---
*2. Dispute Resolution Mechanism*
? ICANN will facilitate the development of rules and procedures for a
separate(i.e., separate from the existing UDRP) dispute resolution
mechanism to resolve claims of abuse of domain names that are registered
and being used in situations where the registrant is
pretending to be the IGO or that are otherwise likely to result in fraud
or deception, /and /(a) are identical to an IGO acronym; (b) are
confusingly similar to an IGO acronym; or (c) contain the IGO acronym.
? Decisions resulting from this mechanism shall be ?appealable? through
an arbitral process to be agreed.
--While our WG is in the process of vetting our preliminary report and
recommendations, because it has operated transparently it is no secret
that it has decided against creation of a new DRP for the sole and
exclusive use of IGOs because there is no demonstrated need to do so.
Further, as regards availability of arbitration for appeals from initial
CRP decisions, while that matter is still being finalized by the WG, to
the extent it is premised upon broad claims of IGO sovereign immunity
such claims are not generally supported by existing legal views
according to the report received from our retained expert on
international law.
Here are some other preliminary observations:
?The timing of this letter, and the specific DRP recommendations
contained in the attached Proposal, are likely to complicate final
agreement within the WG on our preliminary report and recommendations.
IGOs, having chosen not to meaningfully participate in the WG, are now
disrupting its final stage.
?It appears that the proposal we have just received has not been
endorsed by the Board, but is simply the IGO small group?s ?consensus
on a proposal for a number of general principles and suggestions that it
hopes will be acceptable to the GAC and the GNSO?. Although these IGOs
have not meaningfully participated in our WG, they are known to have
monitored our work closely enough that they surely know that these
proposals stand in stark opposition to the WG?s preliminary conclusions.
Finally, in regard to this statement in the Board letter?
The Board?s understanding is that those aspects of the proposal
that concern curative rights protection may be referred by the GNSO
Council to the GNSO?s Working Group that is
conducting the ongoing Policy Development Process (PDP) on IGO-INGO
Access to Curative Rights Mechanisms. We understand further that the
Working Group is currently discussing
preliminary recommendations that it intends to publish for public
comment soon, in the form of an Initial Report. We therefore hope that
the presentation of the attached proposal is timely,
and will be fully considered by the Working Group regarding the specific
topic of enabling adequate curative rights protections for IGO acronyms,
and in conjunction with the GNSO
Council?s management of the overall process for possible reconciliation
of GNSO policy with GAC advice. We also acknowledge, in line with prior
correspondence between the Board?s New
gTLD Program Committee and the GNSO Council, that the Board will not
take action with respect to GAC advice on curative rights protections
for IGOs prior to the conclusion of the
GNSO?s PDP.
- I appreciate the Board?s assurance that it will take no action with
respect to GAC advice on CRP for IGOs until the current PDP is
concluded. I further note that ICANN staff has already transmitted the
Board letter and attached IGO Proposal to all members of the CRP WG and,
following consultation with my Co-Chair, it will likely be the main
topic of discussion at the WG?s next meeting on October 13^th . I can
assure you that the Proposal will be fully considered by the WG.
However, given the fact that the Proposal is at nearly complete odds
with the WG?s preliminary conclusions, and that the IGOs chose not to
participate in the WG in any significant way and thereby take advantage
of the opportunity to make their case to those community volunteers who
have labored in good faith on this project for more than two years, it
is most unlikely that the WG will now abandon its own conclusions and
adopt those of the IGOs.
The Board letter closes with the observation that it wants to ?
reiterate our belief that the most appropriate approach for the Board in
this matter is to help to facilitate a procedural way forward for the
reconciliation of GAC advice and GNSO policy prior to the Board formally
considering substantive policy recommendations?. With all respect, what
has occurred seems a thoroughly inappropriate approach for reconciling
GAC advice and GNSO policy. This Council has undertaken extraordinary
steps to conduct outreach to the GAC and to strive to integrate it
within the GNSO policy development process, and much of that progress is
at risk of being undone by how this matter is ultimately decided.
What is at stake in this matter goes far beyond the relatively rare
instance in which a domain registrant infringes upon the name or acronym
of an IGO and the IGO seeks relief through a CRP. The larger issue is
whether, in a post-transition ICANN, the GAC and the UN agencies that
comprise a large portion of IGOs, will participate meaningfully in GNSO
policy activities, or will seek their policy aims by bypassing the ICANN
community and engaging in direct, closed door discussions with the
Board. Therefore, how the GNSO and the Board ultimately resolve this
matter will have implications far beyond the narrow issue of available
CRPs for IGOs. If IGOs are successful in attaining their policy aims
through the course of action they have pursued it will send a most
unfortunate message that will be detrimental to the functioning of an
ICANN in which community members representing business, technology, and
civil society are supposed to have the lead role in setting policy, and
in which governments are supposed to have a secondary, advisory role.
Sincerely,
Philip S. Corwin
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell***
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*owner-council at gnso.icann.org
[mailto:owner-council at gnso.icann.org] *On Behalf Of *Mary Wong
*Sent:* Thursday, October 06, 2016 5:03 PM
*To:* GNSO Council List
*Cc:* Steve Crocker; Chris Disspain; bruce.tonkin at melbourneit.com.au;
Markus Kummer; Becky Burr; board-ops-team at icann.org
*Subject:* [council] Board reply letter on IGO/RC issues and proposal on
IGO acronyms protection from the IGO "small group"
Dear Councilors,
Please find attached the ICANN Board?s reply to the GNSO Council?s
letter of 31 May 2016 on the topic of protections for IGOs and the Red
Cross. The letter also includes the final proposal on IGO acronyms
protection that was worked on by the IGO ?small group? of IGO, Board and
GAC representatives, facilitated by ICANN staff as appropriate.
We will also transmit a copy of this to the co-chairs of the GNSO
IGO-INGO Curative Rights Protections PDP Working Group and the GAC.
Best regards,
Mary
Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong at icann.org <mailto:mary.wong at icann.org>
Telephone: +1-603-5744889
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