NCSG input on request for special privileges for Red Cross & International Olympic Committee regarding Internet domains

[David Cake]

KK is a trademark law superstar, and I'm not a lawyer at all. 

I'd point out a few points here though - 
- 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). 
- I don't think it is article 44 (that KK quotes) that is the most pertinent part of the conventions here, but article 53
"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."
That article appears to clearly prohibit the use of both the emblem, and the designation, separately. 'Or', not 'and'. 
- 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.

Cheers

David

On 08/10/2011, at 7:02 PM, Konstantinos Komaitis wrote:

> From: David Cake <dave at difference.com.au<mailto:dave at difference.com.au>>
> Reply-To: David Cake <dave at difference.com.au<mailto:dave at difference.com.au>>
> Date: Sat, 8 Oct 2011 04:48:08 +0100
> To: "NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>" <NCSG-DISCUSS at LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>>
> Subject: Re: [NCSG-Discuss] NCSG input on request for special privileges for Red Cross & International Olympic Committee regarding Internet domains
> 
> On 05/10/2011, at 8:36 PM, Marc Perkel wrote:
> 
> 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?
> The philanthropic activities of the Red Cross should not qualify it for special privileges.
> 
> 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.
> 
> So, the philanthropic nature of the Red Cross should not qualify it for special privilege. The Geneva Conventions, however, make a pretty good case.
> 
> 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.
> 
> 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.
> 
> So we should really be careful when taking things out of context – the Geneva conventions are not trademark conventions.
> 
> Cheers
> 
> KK

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