Fwd: Input requested for PDP on the Protection of IGO and INGO Identifiers in all gTLDs (IGO-INGO)
David Cake
dave at DIFFERENCE.COM.AU
Mon Dec 10 11:16:23 CET 2012
My *personal* opinions, that I under stand may not be shared by others, but that I think are worth noting, as answers to the questions below
Cheers
David
On 08/12/2012, at 2:45 PM, William Drake wrote:
> Hi
>
> Our inputs are being actively solicited. There's a group of Councilors that I believe includes Wolfgang and Mary who've been closely engaged on this, but other members may take an interest as well. May I suggest that anyone who'd like to help craft a timely and cutting ed response be in touch with them ASAP? Let's broaden the circle of involvement if we can….
>
> Best,
>
> Bill
>
>
> Begin forwarded message:
>
>> From: Glen de Saint Géry <Glen at icann.org>
>> Date: December 8, 2012 12:33:11 AM GMT+04:00
>> To: William Drake <william.drake at uzh.ch>
>> Cc: Robin Gross <robin at ipjustice.org>, Berry Cobb Mail <mail at berrycobb.com>, Brian Peck <brian.peck at icann.org>, "gnso-secs at icann.org" <gnso-secs at icann.org>
>> Subject: Input requested for PDP on the Protection of IGO and INGO Identifiers in all gTLDs (IGO-INGO)
>>
>>
>> Dear Bill,
>>
>> The PDP Working Group on the Protection of IGO and INGO Identifiers in all gTLDs (IGO-INGO) would appreciate the NCUC’s input through the attached Input Template also in text below:
>> Thank you.
>>
>> Kind regards,
>>
>> Glen
>>
>> Stakeholder Group / Constituency / Input Template
>> Protection of IGO and INGO Identifiers in all gTLDs Working Group
>>
>> PLEASE SUBMIT YOUR RESPONSE AT THE LATEST BY 15 January 2013 TO THE GNSO SECRETARIAT (gnso.secretariat at gnso.icann.org), which will forward your statement to the Working Group.
>>
>> The GNSO Council has formed a Working Group of interested stakeholders and Stakeholder Group / Constituency representatives, to collaborate broadly with knowledgeable individuals and organizations, in order to consider recommendations in relation to the protection of names, designations and acronyms, hereinafter referred to as “identifiers”, of intergovernmental organizations (IGO’s) and international non-governmental organizations (INGO’s) receiving protections under treaties and statutes under multiple jurisdictions.
>>
>> Part of the Working Group’s effort will be to incorporate ideas and suggestions gathered from Stakeholder Groups and Constituencies through this template Statement. Inserting your response in this form will make it much easier for the Working Group to summarize the responses for analysis. This information is helpful to the community in understanding the points of view of various stakeholders. However, you should feel free to add any information you deem important to inform the Working Group’s deliberations, even if this does not fit into any of the questions listed below.
>>
>> For further information, please visit the WG Webpage and Workspace:
>> http://community.icann.org/display/GWGTCT/
>> http://gnso.icann.org/en/group-activities/protection-igo-names.htm
>>
>> Process
>> - Please identify the member(s) of your Stakeholder Group / Constituency who is (are) participating in this Working Group
>>
>> - Please identify the members of your Stakeholder Group / Constituency who participated in developing the perspective(s) set forth below
>>
>> - Please describe the process by which your Stakeholder Group / Constituency arrived at the perspective(s) set forth below
>>
>>
>> Below are elements of the approved charter that the WG has been tasked to address:
>> As part of its deliberations on the first issue as to whether there is a need for special protections for IGO and INGO organizations at the top and second level in all gTLDs (existing and new), the PDP WG should, at a minimum, consider the following elements as detailed in the Final Issue Report:
>>
>> · Quantifying the Entities whose names may be Considered for Special Protection
>> · Evaluating the Scope of Existing Protections under International Treaties/Laws for the IGO-INGO organizations concerned;
>> · Establishing Qualification Criteria for Special Protection of names of the IGO and INGO organizations concerned;
>> · Distinguishing any Substantive Differences between the RCRC and IOC designations from those of other IGO-INGO Organizations.
>>
>> Should the PDP WG reach consensus on a recommendation that there is a need for special protections at the top and second levels in all existing and new gTLDs for IGO and INGO organization identifiers, the PDP WG is expected to:
>>
>> · Develop specific recommendations for appropriate special protections, if any, for the identifiers of any or all IGO and INGO organizations at the first and second levels.
>> · Determine the appropriate protections, if any, for RCRC and IOC names at the second level for the initial round of new gTLDs and make recommendations on the implementation of such protection.
>> · Determine whether the current special protections being provided to RCRC and IOC names at the top and second level of the initial round of new gTLDs should be made permanent for RCRC and IOC names in all gTLDs; if so, determine whether the existing protections are sufficient and comprehensive; if not, develop specific recommendations for appropriate special protections (if any) for these identifiers.
>>
>> Questions to Consider:
>>
>> 1. What kinds of entities should be considered for Special Protections at the top and second level in all gTLDs (existing and new)?
There are two elements that need to be satisfied in order for Special Protections to apply.
The first is that there are legal basis for International protection of a particular string.
The second is that the legal rights covering the string are not provided by existing protection mechanisms (and are not best satisfied by small changes to existing protection mechanisms).
So the IOC, ICRC, and IGO/INGOs are perhaps examples where we should consider the need for Special Protection, but unless it can be shown that rights beyond those already granted by existing RPMs are necessary they should not necessarily be granted. Special Protection should be considered only when options for granting protection via all existing RPMs have been exhausted. I do not believe this has been shown for any of the above entities yet (though it is my expectation that the ICRC is likely to be able to make that case in a full PDP process).
>> 2. What facts or law are you aware of which might form an objective basis for Special Protections under International Treaties/Domestic Laws for IGOs, INGOs as they may relate to gTLDs and the DNS?
Personally, I am aware of the Geneva convention in the case of the ICRC, and the range of accompanying legislation.
It should be noted that the Treaty of Nairobi does NOT form an objective basis for special protection, nor does the legislation protecting the national use of IOC marks at the national level as implemented by a range of governments (primarily past Olympic host nations).
>> 3. Do you have opinions about what criteria should be used for Special Protection of the IGO and INGO identifiers?
>>
>> Group View:
>>
>> 4. Do you think there are substantive differences between the RCRC/IOC and IGOs and INGOs?
There are substantive, significant, differences between the ICRC and the IOCs claims, and between IGOs and INGOs.
In particular, only the ICRC has the power to prevent registration of trademarks for uses unrelated to its own use. Eg. trademarks unrelated to sporting competition exist on the word Olympic, and the IOC does not have the power to prevent their use in commerce, and trademarks on terms that are concidentally connected with IGOs/INGOs exist (for example, trademarks exist on the use of the term WHO despite the World Health Organisation) and the corresponding organisations are not able to prevent their use in legitimate commerce. Accordingly, while RPMs may certainly apply to protect inappropriate use, Special Protection is inappropriate.
>> 5. Should appropriate Special Protections at the top and second level for the identifiers of IGOs and INGOs be made?
>>
>> Group View:
Appropriate measures should be in place, whether Special Protections are necessary should be the outcome of a policy process.
Currently, I do not believe the case has been made. Arguments have primarily focussed on cost minimisation for IGOs and INGOs, which is an argument that should not be used to overrule legitimate uses of trademarks by others.
>> 6. In addition, should Special Protections for the identifiers of IGOs and INGOs at the second level be in place for the initial round of new gTLDs?
>>
>> Group View:
>>
>> 7. Should the current Special Protections provided to the RCRC and IOC names at the top and second level of the initial round for new gTLDs be made permanent in all gTLDs and if not, what specific recommendations for appropriate Special Protections (if any) do you have?
These current Special Protections are not based on a full examination of all appropriate rights (that the IOC and ICRC, whose claims are based on extremely different legal bases, are considered identically is clear proof). They should be considered a stop-gap measure to be replaced by the results of a more thorough process as soon as practical. They should be renewed only after a full examination of the legal bases for their claims and how they compare to existing RPMs.
>>
>> 8. Do you feel existing RPMs or proposed RPMs for the new gTLD program are adequate to offer protections to IGO and INGOs (understanding that UDRP and TMCH may not be eligible for all IGOs and INGOs)?
>>
>> Group View:
UDRP (and URS) should not be exclusive for trademark rights, but should include other rights.
But with minor changes such as this, RPMs should be sufficient for the majority of IGOs and INGOs.
>>
>>
>> For further background information on the WG’s activities to date, please see:
>>
>> · Protections of IGO and INGO identifiers in all gTLDs web page (see http://gnso.icann.org/en/group-activities/protection-igo-names.htm).
>> · Protection of International Organization Names Final Issue Report, for insight into the current practices and issues experienced (seehttp://gnso.icann.org/en/issues/protection-igo-names-final-issue-report-01oct12-en.pdf).
>> · The IOC/RCRC DT page is also a good reference for how those efforts were combined with this PDP (see http://gnso.icann.org/en/group-activities/red-cross-ioc.htm).
>>
>>
>>
>> Glen de Saint Géry
>> GNSO Secretariat
>> gnso.secretariat at gnso.icann.org
>> http://gnso.icann.org
>>
> <IGO-INGO_Input_Request_SG-C_v1.0.doc>
>
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