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I would presume that any (legal/political) foundations for giving
"special reserve status" (sld and tld) to some "terms connoting, in
certain context, a known <i>special</i> political entity" such as
the Red-Cross/Crescent or the IOC would most likely rest on 2
analogies, both of which I would argue have, themselves, weak
justifications/foundations for inclusions on a reserve list to begin
with.<br>
<br>
1st: The entity's relation with regard to States: <br>
<br>
The first possible branch of justification, that I see, has some
organization possess a sense of entitlement to some part of a public
good because it is uniquely recognized by States and so "State-like"
in an unprecised yet somehow important sense; perhaps in the sense
that States exists (non-controversially, at least) when they are
recognized by other like-entities. And so I presume that there are
(probably vague, ill-formed, or otherwise imprecise) expressions of
proximity to, or analogies on, the State, as a
justification/foundation for an entity's name to be placed on a
reserve list. <br>
<br>
I'm not sure that there could be made an argument from this family
of justification/foundation for the <b>existence </b>of a reserve
list itself, though (i.e. i don't think that the existence of
state-like entities, including States themselves, justify prima
faciae that a global commons such as the DNS be somehow classified
so as to grant those entities some entitlement on some of its
parts), but in actual practices countries have carved out for
themselves some DNS entitlement niches that may be used as analogous
grounds from which to extend this (unjustified?) policy of reserving
terms in the DNS. <br>
<br>
This [very-]soft justification/foundation of the "quasi-sovereignty"
nature of an entity (or call it what you like) would need to be put
forth convincingly for me to agree with i) the existence of a
reserve list for such entities and, by extension, ii) for a rule
properly segregating inclusion on the reserve list.<br>
<br>
2nd: The entity's name-string trademark-like protection:<br>
<br>
The second possible foundation/justification branch or family of
argument, that I see, makes a leap from trademark protection <i>in
a market</i> and with regard misuse, to a string's protection in
the DNS, either at the TLD or at the SLD level. The problems with
having a rule segregating properly resides in large part because TM
does not restrict a term outside it's market and location (e.g.
there are many TM'ed "Olympics" or "Budweiser"). So, as far as the
existence of a reserve list is called into question, since it is not
equitable to reserve a name that could be TM'ed multiple times
accross locations and markets for the sole benefit of one of the
entity that had it TM'ed, I don't see a convincing foundation for a
reserve list. On the issue at hand, I read art. 44 as well as art.
53 as restricting the use of the term Red Cross and (or) emblem/logo
in a specific "market" or use-case. I am no TM lawyer but if it is
ok to commercialize a Red-Cross brand for, say, garbage bags or
candy bars, then I don't see a reason for its inclusion on a
reserve-list. The TM foundation/justification for it just does not
trigger an entitlement to a reserved DNS string. If the term's
protection under the conventions covers a very big span of uses, way
more than usual TM, then it would still need to show that it is
appropriate to have a reserve list for sovereign entities, after
which the case would have to made that a soft-sovereignty on its
denoting string would justify its inclusion on the reserve list.<br>
<br>
Nicolas<br>
<br>
(Note though that i'm fine with reserving "example" or some such,
which stems from a different foundation/justification for the
existence and the condition of existence of a reserve list).<br>
<br>
<br>
On 10/10/2011 7:41 AM, David Cake wrote:
<blockquote
cite="mid:EF428B36-5A41-4967-9081-73859B559192@difference.com.au"
type="cite">KK is a trademark law superstar, and I'm not a lawyer
at all.
<div><br>
</div>
<div>I'd point out a few points here though - </div>
<div>- yes, of course the Geneva Conventions are not about
trademark law. That is of course why they are asking for
*special* privileges, if the conventions simply granted them
trademarks they would already have adequate protection. There
are very few parts of international law that concern the use and
display of particular forms of words that aren't trademark law -
and they should be treated specially precisely because they
aren't trademarks (which already enjoy far too much protection
within ICANN for my taste). </div>
<div>- I don't think it is article 44 (that KK quotes) that is the
most pertinent part of the conventions here, but article 53</div>
<div>"<span class="Apple-style-span" style="font-family: Arial;
font-size: 12px; background-color: rgb(255, 255, 255);
display: inline !important; float: none; ">Art. 53. The use by
individuals, societies, firms or companies either public or
private, other than those entitled thereto under the present
Convention, of the emblem or the designation " Red Cross " or
" Geneva Cross " or any sign or designation constituting an
imitation thereof, whatever the object of such use, and
irrespective of the date of its adoption, shall be prohibited
at all times."</span></div>
<div><span class="Apple-style-span" style="font-family: Arial;
font-size: 12px; background-color: rgb(255, 255, 255);
display: inline !important; float: none; ">That article
appears to clearly prohibit the use of both the emblem, and
the designation, separately. 'Or', not 'and'. </span></div>
<div><font class="Apple-style-span" face="Arial">- that said, I am
aware that there is a body of law and precedent here - for
example, I know there is the American Red Cross vs Johnson and
Johnson case etc. - and there is so complexity. I'm certainly
not claiming that the GACs proposal should go forward as is,
without further detailed legal opinions and policy process -
merely that it looks as if there is enough of a case for
special privileges for the Red Cross/Crescent/etc that the
proposal should be taken seriously.</font></div>
<div><font class="Apple-style-span" face="Arial"><br>
</font></div>
<div><font class="Apple-style-span" face="Arial">Cheers</font></div>
<div><font class="Apple-style-span" face="Arial"><br>
</font></div>
<div><font class="Apple-style-span" face="Arial">David</font></div>
<div><br>
</div>
<div>
<div>
<div>On 08/10/2011, at 7:02 PM, Konstantinos Komaitis wrote:</div>
<br class="Apple-interchange-newline">
<blockquote type="cite">
<div>From: David Cake <<a moz-do-not-send="true"
href="mailto:dave@difference.com.au">dave@difference.com.au</a><<a
moz-do-not-send="true"
href="mailto:dave@difference.com.au">mailto:dave@difference.com.au</a>>><br>
Reply-To: David Cake <<a moz-do-not-send="true"
href="mailto:dave@difference.com.au">dave@difference.com.au</a><<a
moz-do-not-send="true"
href="mailto:dave@difference.com.au">mailto:dave@difference.com.au</a>>><br>
Date: Sat, 8 Oct 2011 04:48:08 +0100<br>
To: "<a moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a><<a
moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU</a>>"
<<a moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">NCSG-DISCUSS@LISTSERV.SYR.EDU</a><<a
moz-do-not-send="true"
href="mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU">mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU</a>>><br>
Subject: Re: [NCSG-Discuss] NCSG input on request for
special privileges for Red Cross & International
Olympic Committee regarding Internet domains<br>
<br>
On 05/10/2011, at 8:36 PM, Marc Perkel wrote:<br>
<br>
I will agree with you that I also share the opinion that
the Red Cross should be nominated for sainthood. The
question is though - should that be a reason for special
privileges?<br>
The philanthropic activities of the Red Cross should not
qualify it for special privileges.<br>
<br>
The Geneva Convention, and various national laws that
implement it nationally, do, however, specifically protect
not just the Red Cross symbol, but the words 'Red Cross'.
The vast majority of the states in the world are parties
to the Conventions. The words Red Cross are granted unique
special legal status in terms of their use in many, if not
most, legal jurisdictions.<br>
<br>
So, the philanthropic nature of the Red Cross should not
qualify it for special privilege. The Geneva Conventions,
however, make a pretty good case.<br>
<br>
KK: Two issues that should be clarified here: first of
all, the Geneva conventions establish the standards of
international law for the humanitarian treatment of of the
victims of war. These conventions do not relate to
trademark protection, so taking them out of that context
to justify special trademark privileges is not right.<br>
<br>
Secondly, the Geneva convention states: "Art. 44. With the
exception of the cases mentioned in the following
paragraphs of the present Article, the emblem of the red
cross on a white ground and the words " Red Cross" or "
Geneva Cross " may not be employed, either in time of
peace or in time of war, except to indicate or to protect
the medical units and establishments, the personnel and
material protected by the present Convention and other
Conventions dealing with similar matters." - Watch the
word 'and' between the emblem and the the words 'Red
Cross' - this is to identify that that word should be
protected when it is associated by the emblem. This is
trademark law at its most basic. And, in any case, even if
we are to interpret it otherwise, this protection is based
on the idea of the Convention to promote humanitarian
efforts – nowhere in the convention does it state that the
term 'red cross' should receive special trademark
protection.<br>
<br>
So we should really be careful when taking things out of
context – the Geneva conventions are not trademark
conventions.<br>
<br>
Cheers<br>
<br>
KK<br>
</div>
</blockquote>
</div>
<br>
</div>
</blockquote>
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