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

[Joy Liddicoat]

This is an interesting discussion, but I agree with others that the real
issue is not whether the Red Cross is "special" enough to ask for particular
privileges. A similar case can be made for Human Rights Watch, Amnesty
International, or any other the several hundred civil society groups that
have special United Nations status under UN accreditation guidelines.

The real issue is: do we allocate special privileges to particular
categories of registrants and, if so, on what grounds?

IPR protection has its place, but it is only one point of reference and
generally a very blunt tool which with to carve out policy principles for
domain names that are fair to everyone. The IOC, for example, has a
discriminatory policy in relation to use of its mark. It allows the use of
"Olympic" for many purposes, including for sporting events for disabled
people, but has not allowed this for gay and lesbian sporting events. The
result is that GLBTI athletes can use such international sporting events to
qualify for IOC and other sports rankings (and, as a result, to compete in
the Olympics), event organisers can only use the words "Gay Games" or
similar.

To allow the IOC to perpetuate this discrimination at the second level - for
example in relation to .gay - would be wrong. The GAC should be asked if it
is willing to acknowledge these points, and to work constructively towards a
policy framework that takes us beyond a simple reserve list that can
privilege and reinforce existing inequities.



Joy



From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of David
Cake
Sent: Tuesday, 11 October 2011 12:41 a.m.
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: NCSG input on request for special privileges for Red Cross &
International Olympic Committee regarding Internet domains



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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