Questions/Options for Protection of IOC/Red Cross Names at Top Level

[Mary.Wong at LAW.UNH.EDU]

A couple of strategic questions/suggestions for Joy and KK, with
apologies in advance for any jaded cynicism that may creep in after too
much time in "ICANN-land": 

- this is a drafting team (DT) formed by the GNSO to formulate an
appropriate response to the GAC request, right? If so, don't some of the
options and the current request to extend protection to all languages
(1) exceed implementation details and go into policy; which (2) is
beyond the remit of a DT? 

- even if the DT by rough consensus presents one final recommendation
to the Council, it is always helpful (as Chuck has noted) to give
background. This is where the final report/document is helpful. Other
reports from other groups have indicated where there was Full Consensus,
Rough Consensus, Strong Opposition etc. Is this an option for this DT? 

- NCUC has in the past also submitted a written minority report on
recommendations (e.g. the GNSO's 2007 final report on new gTLDs).
Depending on the outcome of the DT's discussion, this could be another
option. 

Cheers 
Mary


Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584 
As of August 30, 2010, Franklin Pierce Law Center has affiliated with
the University of New Hampshire and is now known as the University of
New Hampshire School of Law. Please note that all email addresses have
changed and now follow the convention: firstname.lastname at law.unh.edu.
For more information on the University of New Hampshire School of Law,
please visit law.unh.edu 


>>> 


From:  
Konstantinos Komaitis <k.komaitis at STRATH.AC.UK> 

To: 
<NCSG-DISCUSS at listserv.syr.edu> 

Date:  
2/23/2012 4:43 AM 

Subject:  
Re: [NCSG-Discuss] Questions/Options for Protection of IOC/Red Cross
Names at Top Level 

Thanks for this Joy - yes, I am insisting and will be insisting that
the GNSO is presented with more than one option - at the very least the
GNSO should be presented with the options that have received some
support even if that support is minimal. So, we have supported option
number 1, which basically says stick to the applicant guidebook which
already provides special protection for these terms but do not go beyond
this. of course, we are the minority and the rest of the DT want to go
for the option that elevates these terms to a 'modified reserved
status', which in some instances it is even worse than what ICANN
originally meant by reserved names. But, the GNSO needs to get all the
fact before they discuss and decide on the DT's recommendations . This
is especially the case if option number 1 has also the support of ALAC
(which I understand it has). In any case and if the group eventually
decides to go only with the recommendation that has received rough
consensus I would hope that our councillors ask to hear whether other
views were expressed during the DT's discussions

Thanks

KK

Dr. Konstantinos Komaitis,

Senior Lecturer,
Director of Postgraduate Instructional Courses
Director of LLM Information Technology and Telecommunications Law
University of Strathclyde,
The Law School,
Graham Hills building,
50 George Street, Glasgow G1 1BA
UK
tel: +44 (0)141 548 4306
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
Selected publications:
http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
Website: www.komaitis.org

-----Original Message-----
From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
Joy Liddicoat
Sent: Πέμπτη, 23 Φεβρουαρίου 2012 5:54 πμ
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: [NCSG-Discuss] Questions/Options for Protection of IOC/Red
Cross Names at Top Level

Thanks Nicolas - that is helpful. There is a new option 7 which will be
available for circulation shortly. I am not sure there is any appetite
among the rest of the working group for further ideas, but we can only
try.
Key issues for the working group next are: whether there is rough
consensus on a single option and b) whether only one option should be
presented to the GNSO and GAC or all options or a subset. There is a
strong view from some participants that we should put just one option if
there is rough consensus to do so (see Konstantinos's previous messages
about trying to develop some options).
We'd appreciate any comments and guidance on that, too Thanks Joy


-----Original Message-----
From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf Of
Nicolas Adam
Sent: Thursday, 23 February 2012 12:54 p.m.
To: NCSG-DISCUSS at LISTSERV.SYR.EDU
Subject: Re: Questions/Options for Protection of IOC/Red Cross Names at
Top Level

What about,

option 3 (i don't know where you guys find the 7th option in this
discussion though, I only see 6 options with a lot of variants), but
only for the second round of application.

Or your new option (below = designated names) with the possibility of
IOC or RC, as applicable, to solely entertain the right to apply for
these on the second round.

This would be set out in section 2.2.1.2.4, dealing definitively with
section 2.2.1.2.3.

This would reflecting positively on our working with GAC requests and
Board implementation, but would also recognize that neither case was
properly made with regard earning a blanket reserved status of whatever
type.

This would preserve everybody's cake and everyone could walk around
with a full belly. Everyone except people that were hungry for a hidden
agenda, of course.

Nicolas


On 2/22/2012 4:57 PM, Joy Liddicoat wrote:
> Thanks - I have this feedback from Greg Shatan who is participating
in the working group:
>       "I think this option doesn't work, because the Guidebook does
not allow the IOC or the RCRC to  apply for these names at the top
level.  That's how we ended up with the concept of "Modified   Reserved
Names" (which can be registered by the IOC or RCRC)."
> Comments?
> Joy
>
> -----Original Message-----
> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf
Of
> Nicolas Adam
> Sent: Thursday, 23 February 2012 10:24 a.m.
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: Questions/Options for Protection of IOC/Red Cross Names
> at Top Level
>
> This course of action enjoys my support. Well thought, Joy!
>
> Nicolas
>
> On 22/02/2012 11:10 AM, Konstantinos Komaitis wrote:
>> I really like this Joy - especially since it adheres to the
applicant guidebook and it does offer a certain level of protection for
these marks that does not go beyond what international statutes and
conventions are suggesting. I think that the task imposed on this group
has been impossible and I truly not understand its real purpose
considering that the current version of the applicant guidebook already
provides for an additional protection for these marks. I find you
suggestion as seeking to reconcile therefore what should be done and
what is asked to be done.
>>
>> And, although I am the first to go with option number 1 and I have
certainly communicated this and will continue to do so to the WG
currently working on these issues, I think that this can be a workable
alternative.
>>
>> Thanks
>>
>> KK
>>
>> Dr. Konstantinos Komaitis,
>>
>> Senior Lecturer,
>> Director of Postgraduate Instructional Courses Director of LLM
>> Information Technology and Telecommunications Law University of
>> Strathclyde, The Law School, Graham Hills building,
>> 50 George Street, Glasgow G1 1BA
>> UK
>> tel: +44 (0)141 548 4306
>>
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-
>> R
>> egulation-isbn9780415477765 Selected publications:
>> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>> Website: www.komaitis.org
>>
>>
>> -----Original Message-----
>> From: Joy Liddicoat [mailto:joy at apc.org]
>> Sent: Τρίτη, 21 Φεβρουαρίου 2012 11:50 μμ
>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>> Cc: Konstantinos Komaitis
>> Subject: RE: Questions/Options for Protection of IOC/Red Cross
Names
>> at Top Level
>>
>> Hi all - just returning to the options discussion again. I would
like to propose a couple of other options to the working group.
>> My reason is that the current 7 options go from a simple rejection
of the GAC proposal to more nuanced reserved names options. I believe
more options are possible for responding constructively to the GAC (ok -
leaving aside whether you think we should do that or not).
>> For example, the GNSO could recommend no change to the Guidebook but
respond to the GAC proposal positively by suggesting a supplementary
list of designated names of those proffered by the GAC. Provided the
supplementary names fall within the designated names in the guidebook
this might be more comfortably construed as implementation – but others
may feel quite differently about that.
>> Further, there may be an option for some joint working group with
GAC on this, as GAC has proposed, that we could also explore rather than
simply “outright rejection” or “reserved or modified reserved names” (I
say that with no disrespect to all the work that has been done in
developing these options). Thus, a new Option 1A or 1B might look like
this:
>> Option 1A: Recommend no change to the Guidebook but respond to the
GAC proposal positively by proposing supplementing the list of
designated names within those recommended by GAC in September 2011. This
means that the names set forth in 2.2.1.2.3:
>> a)      Are designated names
>> b)      Are not considered “reserved names”
>> c)      Are implemented with a list of supplementary designated
names as previously set out by the GAC
>> d)      Designated names, including supplementary, are reviewed
after the initial round, as provided in the Guidebook
>> e)      This would not preclude the IOC/Red Cross from bringing a
legal rights objection elsewhere in the initial round in accordance with
the Guidebook.
>> Option 1B:  Option 1A and proposing a joint working group with GAC
to
>> support the Designated Names Review after the initial round, as
>> provided in the Guidebook
>>
>> Interested in your thoughts - and these are just my personal views
as
>> which I would offer to the working group, not on behalf of NCUC
>>
>> Joy
>>
>> -----Original Message-----
>> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On Behalf
>> Of Marc Perkel
>> Sent: Tuesday, 21 February 2012 7:08 a.m.
>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>> Subject: Re: Questions/Options for Protection of IOC/Red Cross
Names
>> at Top Level
>>
>> +1
>>
>> On 2/20/2012 9:55 AM, Robin Gross wrote:
>>> I agree with you, Konstantinos.  These groups have not attempted to
answer the question about how their existing protections are inadequate,
which should be a threshold question that any responsible policy making
body (GNSO?) would ask of a group seeking special rights.
>>>
>>> Thanks,
>>> Robin
>>>
>>> On Feb 20, 2012, at 1:40 AM, Konstantinos Komaitis wrote:
>>>
>>>> Thanks Joy - I am definitely in favour of the rejection of the
>>>> whole thing, which in reality is not rejection as the latest
>>>> version of the Guidebook does actually incorporate some provisions
for these names.
>>>> So, even if we go for option 1, the Board has already granted
>>>> special privileges to these names - they really don't need more.
As
>>>> you can see from the list there is some sort of 'pressure' for
>>>> option 7, which transforms these names into a reserved list
>>>> category. But, I have two problems with these proposals: a) the
>>>> group doesn't seem to understand that the protection for these
>>>> names is only for commercial use and this is something we should
>>>> insist on
>>>> - it reflects the Nairobi Treaty that they quote. And, secondly,
>>>> and more annoyingly, any such protections give these orgs power
to
>>>> become arbiter of who gets a place on the Internet - commercial,
>>>> non commercial and communities. The idea that a Greek community
>>>> wishing to register the term Olympiad will have to request
>>>> permission from IOC gives me the chills :)
>>>>
>>>> KK
>>>>
>>>> Dr. Konstantinos Komaitis,
>>>>
>>>> Senior Lecturer,
>>>> Director of Postgraduate Instructional Courses Director of LLM
>>>> Information Technology and Telecommunications Law University of
>>>> Strathclyde, The Law School, Graham Hills building,
>>>> 50 George Street, Glasgow G1 1BA
>>>> UK
>>>> tel: +44 (0)141 548 4306
>>>>
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Nam
>>>> e
>>>> -
>>>> Regulation-isbn9780415477765 Selected publications:
>>>> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>>>> Website: www.komaitis.org
>>>>
>>>> -----Original Message-----
>>>> From: Joy Liddicoat [mailto:joy at apc.org]
>>>> Sent: Δευτέρα, 20 Φεβρουαρίου 2012 2:28 πμ
>>>> To: Konstantinos Komaitis; NCSG-DISCUSS at LISTSERV.SYR.EDU
>>>> Subject: RE: Questions/Options for Protection of IOC/Red Cross
>>>> Names at Top Level
>>>>
>>>> Hi Konstantinos - one follow up on this. I keep going first
principles and the whole concept that it is inappropriate to talk of
ownerships of a domain name (RFC 1591). My worry with giving the IOC and
Red Cross this decision-making power (option 5 and 6) is that we are
effectively creating a moderated space. I still think Option 1 is better
(implement the guidebook as it is and if it is problematic, tell the
Board so in a review of the first round of new gTLDs).
>>>> Or maybe we should suggest a new moderated TLD space:   .gac
>>>>
>>>> Joy
>>>>
>>>> -----Original Message-----
>>>> From: Konstantinos Komaitis [mailto:k.komaitis at strath.ac.uk]
>>>> Sent: Tuesday, 14 February 2012 10:36 p.m.
>>>> To: 'Joy Liddicoat'; NCSG-DISCUSS at LISTSERV.SYR.EDU
>>>> Subject: RE: Questions/Options for Protection of IOC/Red Cross
>>>> Names at Top Level
>>>>
>>>> Thanks Joy - the more I think about it the more I reject option 3
or any option for that matter that will require legitimate applicants
(existing trademark owners, the Greek gov. etc) to ask for IOC's
permission. What does this permission mean? Currently, in most of the
cases, it comes with license fees. Does it mean that an applicant, even
if they get permission by IOC, they will have to pay a license to do
so?
>>>>
>>>> As there is a great possibility for IOC to charge for these
'permissions' -I am not sure how we can water this down. This is already
an expensive process and 'permissions' have the tendency to come with
'costs', especially when we are talking about an entity that makes all
its money through sponsorship deal and by taking advantage of the
Olympic name.
>>>>
>>>> Originally, I found ridiculous the idea that legitimate rights'
owners would have to ask for a permission to use a term that they
lawfully hold; now, I find it both ridiculous and scary that they might
even have to pay for it.
>>>>
>>>> I could work with option 7 :)
>>>>
>>>> KK
>>>>
>>>>
>>>>
>>>> Dr. Konstantinos Komaitis,
>>>>
>>>> Senior Lecturer,
>>>> Director of Postgraduate Instructional Courses Director of LLM
>>>> Information Technology and Telecommunications Law University of
>>>> Strathclyde, The Law School, Graham Hills building,
>>>> 50 George Street, Glasgow G1 1BA
>>>> UK
>>>> tel: +44 (0)141 548 4306
>>>>
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Nam
>>>> e
>>>> -
>>>> Regulat
>>>> ion-isbn9780415477765
>>>> Selected publications:
>>>> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>>>> Website: www.komaitis.org
>>>>
>>>> -----Original Message-----
>>>> From: Joy Liddicoat [mailto:joy at apc.org]
>>>> Sent: Τρίτη, 14 Φεβρουαρίου 2012 2:28 πμ
>>>> To: Konstantinos Komaitis; NCSG-DISCUSS at LISTSERV.SYR.EDU
>>>> Subject: RE: Questions/Options for Protection of IOC/Red Cross
>>>> Names at Top Level
>>>>
>>>> Hi KK and thanks for your mammoth efforts on this, especially as I
missed the last call.
>>>> I remain convinced Option 1 is preferable - Option 3 is clearly a
modification of existing policy and not a simple matter of
"implementation".
>>>> If Option 3 requires some modification I would suggest and
amendment making it clear that any string similarity review must be
conducted in an impartial manner and therefore not by any party
connected to the IOC or RC.
>>>> In relation to the other questions, I favour only applying the
proposal to the languages set out in the GuideBook and also only in this
round (it can be reviewed after the first round - we are, after all, in
new territory as these discussions over the last 4 months show).
>>>> Perhaps, if there is no agreement there is an option 7: The
>>>> specific names are locked and no-one can have them ;) Joy
>>>>
>>>> -----Original Message-----
>>>> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On
Behalf
>>>> Of Konstantinos Komaitis
>>>> Sent: Thursday, 9 February 2012 10:56 p.m.
>>>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>>>> Subject: Re: Questions/Options for Protection of IOC/Red Cross
>>>> Names at Top Level
>>>>
>>>> Hi all,
>>>>
>>>> A quick update on what happened at last night's call concerning
the IOC and the Red Cross protections.
>>>>
>>>> I communicated the position of the NCUC - mainly that an
overwhelming majority of this group is against any sort of special
protections (Option 1) for any of these marks, despite the fact that
many members felt more sympathetic towards the Red Cross rather than the
IOC. As expected, we were the only group that went for that option and
there was a lot of discussion about that. I raised the point of the
precedent this would set, a point that was shared by the Registry SG,
only they felt that the GAC letter made it clear that no such precedent
would be set. I disagreed. Both the IOC and the Red Cross have appeared
to be pushing for Jeff's option number 3 - what Jeff termed as 'modified
reserved names' ,which essentially means to elevate these two marks (and
their variations) to the status that currently is enjoyed by ICANN's
reserved names list, i.e the words 'example, 'ICANN' etc.
>>>>
>>>> It appears that the majority of the group will try to work out
language for this option 3 and also push for more languages to be
included in the list of the existing 8 languages that the AG currently
suggests. and, also they would like to see this kind of protection
extending beyond this round.
>>>>
>>>> So, where are we right now? no decision has been taken of course,
>>>> but NCUC is the only group totally against this kind of
protection.
>>>> Alan Greenberg was there as well and he stated that the ALAC
>>>> position has not managed to reach a consensus but he sounded as
if
>>>> he was also going for option 3. (not sure if he was speaking on
>>>> behalf of ALAC or in his personal capacity)
>>>>
>>>> For me option 3 is really problematic and needs to be watered
down
>>>> significantly. Option 3 means, for instance, that if the Greek
>>>> Government wished to apply for .Olympiad (the location where it
all
>>>> started - the
>>>> Olympics) they will have to get permission from the IOC. This is
a
>>>> point I raised and Gregory S. Shatan, who is with the IPC said
that
>>>> he thought it was highly unlikely for a small village of 7000
>>>> people to apply for a gTLD - a point which pissed me off so I
>>>> engaged in a quick history lesson about the Olympic games and
where
>>>> they were originally born :)
>>>>
>>>> The other issue that was discussed was whether the recommendations
of this group would have to be reviewed. This was a point that Alan, 
the IOC, the Red Cross and some others found to be quite burdensome and
bureaucratic.
>>>> However, I made very clear that this group is asked to come up
with interpretations of international law and create 'new rules' - and
mistakes are inevitable. So, the discussion was left that it would be
ideal if a review were to be conducted but this should not be mandatory.
Again, I disagreed and I will insist on making it mandatory, just like
we made it mandatory for the URS to be reviewed after a year.
>>>>
>>>> I would like this group to start thinking of other options rather
than rejecting these protections. With or without NCUC, I think the
group will come up with some recommendations. I know that we don't agree
(and certainly I believe that this whole issue is going to backfire and
neither of these entities should get special protection on the basis
that there is no solid argument for this kind of protection) but I also
think we need to engage if we wish to water down any of the proposals
that come out of this group.
>>>>
>>>> Looking forward for your input on this.
>>>>
>>>> KK
>>>>
>>>>
>>>> Dr. Konstantinos Komaitis,
>>>>
>>>> Senior Lecturer,
>>>> Director of Postgraduate Instructional Courses Director of LLM
>>>> Information Technology and Telecommunications Law University of
>>>> Strathclyde, The Law School, Graham Hills building,
>>>> 50 George Street, Glasgow G1 1BA
>>>> UK
>>>> tel: +44 (0)141 548 4306
>>>>
http://www.routledgemedia.com/books/The-Current-State-of-Domain-Nam
>>>> e
>>>> -
>>>> Regulat
>>>> ion-isbn9780415477765
>>>> Selected publications:
>>>> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>>>> Website: www.komaitis.org
>>>>
>>>>
>>>> -----Original Message-----
>>>> From: NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] On
Behalf
>>>> Of Konstantinos Komaitis
>>>> Sent: Κυριακή, 5 Φεβρουαρίου 2012 10:35 πμ
>>>> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
>>>> Subject: Re: [NCSG-Discuss] Questions/Options for Protection of
>>>> IOC/Red Cross Names at Top Level
>>>>
>>>> This has been a great discussion and thank you all for your
contributions.
>>>> Great points have been raised by all of you and, in particular, I
think that the most crucial one is the kind of precedent this whole
process will set, both from an institutional and substantive point of
view. Both issues have been raised by myself and others, but the
majority doesn't seem to think this as a problem either due to the fact
that they are focused on this issue alone or because they don't see the
GAC involvement as a 'tangible' threat to multistakeholder governance.
>>>>
>>>> I will convey that the majority (NCUC) of this group is against
any special treatment - my fear is, that we - NCUC - will be the only
group going towards this. So, the question becomes: if consensus is
achieved towards some sort of protection (which I suspect it will), do
we engage in trying to water down these protections or not?
>>>>
>>>> @Evan: I think NCUC (and certainly myself) would like to see an
ALAC and NCUC collaboration on this front. I think that a joint
statement might be of value to begin with and we can put this as an
agenda item when we meet in Costa Rica.
>>>>
>>>> Thanks
>>>>
>>>> KK
>>>>
>>>> From: Dan
Krimm<dan at MUSICUNBOUND.COM<mailto:dan at MUSICUNBOUND.COM>>
>>>> Reply-To: Dan
>>>> Krimm<dan at MUSICUNBOUND.COM<mailto:dan at MUSICUNBOUND.COM>>
>>>> Date: Sat, 4 Feb 2012 19:02:06 +0000
>>>> 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] Questions/Options for Protection of
>>>> IOC/Red Cross Names at Top Level
>>>>
>>>> At 9:38 AM +0100 2/4/12, William Drake wrote:
>>>>
>>>> So returning to KK's original message, I am for  Option 1:
Recommend no changes to Guidebook and reject GAC Proposal, with an
objection on process and precedent grounds complimenting the substantive
case.
>>>>
>>>> I've not been counting, but this seems consistent with a clear
majority of views expressed here to date.
>>>>
>>>> On Feb 3, 2012, at 8:20 PM, Evan Leibovitch wrote:
>>>>
>>>> If there is interest in joint NC / AtLarge pushback I'll certainly
help advance the idea.
>>>>
>>>>
>>>> My guess is that NCUC would be willing to pursue this.  Anyone
disagree?
>>>>
>>>>
>>>> I concur with both of these.
>>>>
>>>> Dan
>>>>
>>>> PS:  Is it worth expressing a "second choice" in the case that
Option 1 is rejected by the policy group?  Anybody for full
ranked-choice voting here?
>>>>
>>>> Not to confuse things...  ;-)
>>>>
>>>>
>>>> --
>>>> Any opinions expressed in this message are those of the author
alone and do not necessarily reflect any position of the author's
employer.
>>>>
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