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

[Nicolas Adam]

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 /special/ 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.

1st: The entity's relation with regard to States:

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.

I'm not sure that there could be made an argument from this family of 
justification/foundation for the *existence *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.

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.

2nd: The entity's name-string trademark-like protection:

The second possible foundation/justification branch or family of 
argument, that I see, makes a leap from trademark protection /in a 
market/ 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.

Nicolas

(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).


On 10/10/2011 7:41 AM, David Cake wrote:
> 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><mailto:dave at difference.com.au>>
>> Reply-To: David Cake <dave at difference.com.au 
>> <mailto: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><mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU>" 
>> <NCSG-DISCUSS at LISTSERV.SYR.EDU 
>> <mailto: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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