[ncdnhc-discuss] Proposed Names Council resolution on GAC/country names

[Milton Mueller]

Dear NCDNHC members:

This resolution was proposed by the Chair of the Names Council.
I support most of it, except for point 4 and the last paragraph.
Instead of asking WIPO to resolve the problem, I would 
prefer to issue a general statement that name reservations
and exclusions are not the proper method to protect rights in
names, and call for countries to rely on the own ccTLDs
to establish domains structured the way they want.

===

Draft Names Council resolution on the reservation of geographical and geopolitical names September 2001 v2

Whereas,
in a communiqué made by the Government Advisory Council at its Montevideo meeting http://www.icann.org/committees/gac/communique-09sep01.htm "the GAC recommends that the names of countries and distinct economies, particularly those contained in the ISO 3166-1 standard, as applied by ICANN in identifying ccTLDs, should be reserved by the .info Registry, (or if registered in the Sunrise Period challenged by the Registry and, if successful, then reserved) in Latin characters in their official language(s) and in English and assigned to the corresponding governments and public authorities, at their request, for use. These names in other IDN character sets should be reserved in the same way as soon as they become available"

Whereas,
in the same communiqué the GAC further "draws the attention of ICANN and the Registries to the fact that a large number of other names, including administrative sub-divisions of countries and distinct economies as recognised in international fora, may give rise to contested registrations. Accordingly the GAC recommends that Registrars and eventual Registrants should be made aware of this".

Whereas,
 the ICANN Board in reaction to this communiqué has resolved http://www.icann.org/minutes/prelim-report-10sep01.htm  [01.92], "the General Counsel is directed to take appropriate action to preserve the Board's ability to take action with respect to the registration in .info of names of countries and distinct economies contained in the ISO 3166-1 list"

Whereas, 
the recent report from WIPO The Recognition of Rights and the Use of Names in the Internet Domain Name System http://wipo2.wipo.int/process2/report   concludes:
"For geographical identifiers, * it is recognized that certain norms exist at the international level which prohibit false and deceptive indications of geographical source on goods and which protect geographical indications, or the names of geographical localities with which goods having particular characteristics derived from that locality are associated.  However, these rules apply to trade in goods and may require some adaptation to deal with the perceived range of problems with the misuse of geographical indications in the DNS.  Furthermore, the lack of an international agreed list of geographical indications would pose significant problems for the application of the UDRP in this area because of the need to make difficult choices of applicable law.  It is suggested that the international framework in this area needs to be further advanced before an adequate solution is available to the misuse of geographical indications in the DNS.  As far as other geographical terms are concerned, the Report produces considerable evidence of the widespread registration of the names of countries, places within countries and indigenous peoples as domain names by persons unassociated with the countries, places or peoples.  However, these areas are not covered by existing international laws and a decision needs to be taken as to whether such laws ought to be developed".

Whereas,
the WIPO report shows that seeking to extend coverage to anything narrower that the ISO 3166 country list is fraught with problems some of which have occupied the WTO and other fora for years due to conflicts arising:
§	between geo-political indicators e.g. Venice Italy, Venice CA
§	between geographical indicators and descriptors e.g. Chablis (French wine region and Chablis-style wines from California).
§	between geographical indications and trademarks e.g. Torres (a Portuguese village that grows vines and Torres, a Spanish winemaker), 
§	between geo-political and geographic indications of origin e.g. Parma the town and Parma ham.

Whereas, 
the  recent expansion of top-level domain names by ICANN has been a limited rather cautious test and included the names dot biz, dot name and dot info as well as chartered domain names, and that the implication of this expansion is that there are more to come in the near future.

Whereas, 
the dot info registry has adopted the UDRP to enable the return of names acquired in bad faith.

Whereas,
the ICANN Board has approved initiatives relating to Multilingual Domain Names and these initiatives have yet to complete their work,


The Names Council advises:

1. That while it understands the concerns of the GAC, caution should be exercised to avoid a short-term reaction to a problem that is not inherent to dot info but a function of a restriction in the supply of domain names.

3. That retrospective action of the kind GAC seeks in other domain names is damaging to suppliers and confusing to users.

4. That, due to the inherent complexity, the best forum for governments to seek solutions to the problems perceived by the GAC is the existing forum of such expertise, namely the World Intellectual Property Organisation (WIPO). 

The Names Council therefore calls upon the ICANN Board,
to recommend to the GAC a reversal of its communiqué in this respect and to propose a specific work item on this issue to be conducted by WIPO building on the work outlined in the recent report The Recognition of Rights and the Use of Names in the Internet Domain Name System.