FW: [gnso-iocrc-dt] Documents / Thoughts for Initial Call on Wednesday

Wed Jan 11 11:23:10 CET 2012

Hi Joy and all,

Please find below some comments and apologies for not getting back to you earlier. As you may know, I have been a strong advocate against any type of special protection in the form of reserving names in the new gTLD space. I am particularly concerned with the terms 'Olympic' and 'Olympiad' as they do not necessarily and automatically indicate association with IOC. Coming from Greece, there are numerous trademarks, service marks and brands that use solely or incorporate in their names the terms 'Olympic' or 'Olympiad'; needless to say, that especially the term Olympiad is associated with Greece's cultural heritage and it is very dangerous to assign it exclusively to a body that has commercial ties and makes so much money out of sponsorship deals. I am even pissed off that the Greek GAC member is not bringing up this very issue and object to this kind of reservation.

More importantly, I fear that reserving these names will open a Pandora's Box and will re-introduce (at some point down the road) the GPML issue. I know that the attached document clearly rejects such a possibility, but this is ICANN. the GPML is something that I know for a fact that trademark community does not want to let go - if there is a precedent even at this limited level, it can be sued in the future for similar policies. We all experienced international organizations pushing for similar protection. This is just the beginning. If reservations takes place therefore, clear rules should be carved that do not allow other names to join the reserved list under similar or different justifications.

Thanks and I am planning on joining the call today.

KK
Overall Issue:

a)      Do we believe this issue is one of implementation (as the GAC has interpreted), or is this an issue of policy?
[Konstantinos Komaitis] This is certainly a policy issue. I understand why the GAC would like to see it as an implementation one, since this would mean that the decision to reserve these names is resolved, but this is not the case. I don't think the community has uniformly agreed that this is the case. Despite the fact that this issue may be limited to just two names, the GNSO should carefully consider this matter and what reserving those names will mean. We have already seen other international bodies calling for similar protection mechanisms and once a precedent, then it will be difficult to reverse it. So I would like to urge the GNSO and our councilors to be cautious on that front.

b)      Should these marks be protected at all?  Pros vs. Cons?  (NOTE:  This item's discussion can take up the entire call, but I do not want to dwell on this given the number of subjects.  What I would like to do is spend no more than 15 minutes on this subject listing the arguments for and against.  Of course we will allow anyone to submit comments via e-mail on this subject after the call for evaluation).  I am not trying to suppress any discussion on this, but given that we spent almost all of the Council discussions in Dakar on this question alone and did not have much time to discuss the other questions, I want us to be able to get on to the other questions.
[Konstantinos Komaitis] I have long stated that, although I understand the value of these names, I fail to see a legal or social justification for the kind of protection they seek. Currently, sufficient mechanisms exist that allow the protection of these marks both in the top level and second level. What is the great need for such a protection? And, why have we only seen the IOC and the Red Cross being promoted as of greater value than let's say Amnesty International? I can only see cons if we proceed with this - cons that will ultimately backfire.

One issue that I still fail to see how it can be used as a justification for this kind of protection is the Nairobi Treaty in the case of the IOC. Even within the document that is attached ( IOC and IRC reservations in new gtlds Q&A) it is stated: "The Nairobi Treaty protects the Olympic Symbol-the five interlocking rings-rather than the words OLYMPIC or OLYMPIAD". So, here we have it - this Treaty does not protect the name, but the combination of the Olympic symbol with the name. I find it very concerning that we are discussing exclusivity on words alone.

Top Level Protection
At the top level, the request is to protect the Olympic and Red Cross terms like the words "test" and "example" in the Applicant Guidebook (Section 2.2.1.2), extending those terms to multiple languages and receiving consideration during the String Similarity review.  Right now, these terms (in not every language) is in the section entitled "Strings Ineligible for Registration" and would not invoke String Similarity Review.

Questions:

a)       Should the reservation be permanent or just apply during the first round?
[Konstantinos Komaitis] Only in the first round. This should not become a set rule!

b)      Should terms in this round and beyond receive consideration during string similarity review?
[Konstantinos Komaitis] I thought this would inevitably happen. In any case, even at this stage it should not be as straightforward as many claim - real and tangible consumer confusion should be evidenced.

c)       Should reservation in this round and beyond extend to additional languages?
[Konstantinos Komaitis] if reservation is to take place, it should happen across the various languages. Otherwise, we are differentiating between ASCII and IDNs and we are indicating to the non-speaking world that ASCII is more important than IDNs.

Second Level Protections
With respect to second-level names, the GAC requests that ICANN amend the new gTLD Registry Agreement to add a new schedule of second-level reserved names. The new schedule should reserve those terms set forth in Schedule A attached to their proposal.    They recommend the identical terms be protected in the 6 UN languages with an "encouragement" to registries to provide additional languages.

Questions

a.       Should Olympic and/or Red Cross names be reserved at the second level in all new gTLDs?
[Konstantinos Komaitis] NO!

b.      If so, what type of reserved name would this be?

                                                                                       i.      A "forbidden name" that can never be registered (not even by those organizations) - NOTE The GAC in the Q&A said this is not what they want.

                                                                                     ii.      Like a 2 letter country code where the Registry Operator may also propose release of these reservations based on its implementation of measures to avoid confusion with the corresponding country codes.

                                                                                    iii.      Like a Country or Territory Names, which are initially reserved, but the reservation of specific country and territory names may be released to the extent that Registry Operator reaches agreement with the applicable government(s), provided, further, that Registry Operator may also propose release of these reservations, subject to review by ICANN's Governmental Advisory Committee and approval by ICANN.

c.       Assuming it can be one where the reservation is released:  What would be the mechanism for removing from the reserved list?

Any other questions or topics?

Thanks!

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Law & Policy
21575 Ridgetop Circle, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / jeff.neuman at neustar.biz<mailto:jeff.neuman at neustar.biz>  / www.neustar.biz<http://www.neustar.biz/>
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