At 05/03/2012 02:46 AM, Hong Xue wrote:

Without attempting to say what is right/wrong/good/bad, it might be

...

important to remember that the various Red Cross strings and I think the IOC ones (but not quite sure about that) are not trademarks. Whether they would be handled by WIPO (or UDRP) procedures, I don't know, but they are a different sort of beast. The various Red Cross symbols are character strings (as it has been explained to me) are not actually "owned" by the International Red Cross Movement but are protected in accordance with treaties, by individual laws within virtually all countries. Moreover, unlike trademark violation, improper use of the symbols and strings are protected in most countries by criminal code statute, so improper use is actually a criminal offence.

I did not join the ALAC call so am not sure whether the following "legal" or "factual" basis has been addressed or not.

It is true that RC or IOC emblems are not trademarks and cannot be "trademarkable" under the relevant international laws. So UDRP that can only handle disputes between trademarks (service marks) and domain names is not available proceeding to ICRC or IOC. BUT, within the new gTLD review process, both sets of symbols can be protected through "objection based on legal right", which applies to all the IGO names (and other names). Besides RC and IOC, GAC, ALAC and Independent Objector can all object to the pertinent applications and bring them to the dispute resolution process. So it is indeed questionable whether RC and IOC deserves more protection than the other IGOs.

It is true that RC and IOC emblems are both protected under the international treaties. But Geneva Convention (series) and Nairobi Treaty on the Protection of the Olympic Symbol are actually not on the same page. While almost all the countries in the world have joined the Geneva Conventions and should protect RC and the other three equivalent names, Nairboi Treaty has only 50 member states (as of the end of 2011) and contains many exceptions (such as non-commercial use and prior use). It is doubtful whether ICANN's absolute protection for Olympic signs has gone beyond the Treaty. Interestingly, USA is still not a member state of Nairobi Treaty. Existence of an international treaty does not entitle certain signs holly right.

The preemptive measure is both limited and ineffective. For example, it cannot exclude Olympik, etc.

Hong

Thanks Hong, I agree that the two cases are quite different and it is unfortunate that they were lumped together. I think that the Board action (aside from being counter to the bottom up process) was probably not needed. The chances of someone other than these organizations spending $185k to register those exact strings is very low, and even lower that they would survive a challenge. But I guess it was a way of addressing the issue and moving forward. Your last comment is quite true. That was one of the motivations for the changes that the DT has recommended. If we are going to have the restriction, make them effective, and also try to ensure that is someone does apply for a "similar but not identical" string, they know earlier in the game whether it sill be successful - challenges happen quite late in th e process. Interestingly, the situation may not be as clear at the second level, but those discussions have not started. Alan