Thanks Jonathan. I would be happy to keep the pen on this and help move this forward. Everyone, please let me know your comments ASAP. Would be great to have a response approved during our next call. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: Jonathan Robinson [mailto:jonathan.robinson@ipracon.com] Sent: Thursday, December 06, 2012 6:08 AM To: Neuman, Jeff; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter Jeff, Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting. This approach takes it a step further and faster. Great. Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines: 1. Is the approach taken below one which you broadly do or do not support? 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved? 3. If no to 1 above, please explain why and how you suggest we approach this differently? 4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above? I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text. One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps? Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this? Jonathan From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 05 December 2012 22:42 To: council@gnso.icann.org<mailto:council@gnso.icann.org> Subject: [council] Proposed Response to the GAC regarding November 28th Letter All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO's determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations "in all gTLDs." We are not aware of a bright line test to distinguish "policy" from "implementation" in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN's multi-stakeholder processes. For purposes of responding to your letter, however, the term "policy development" has traditionally applied to ICANN's consideration of an issue that is within the scope of ICANN's mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations ("IGO's") and international non-governmental organizations ("INGO's") at the top and second level meets the criteria described above. We do not dispute the validity of the GAC's advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee ("IOC") and the Red Cross/Red Crescent ("RC/RC") names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws - like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context - particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC's advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is "complementary" to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO's acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant's potential use of the applied-for gTLD would be likely to infringe the objector's existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time - including quite recently. The GNSO believes that the issues identified above fall within the definition of "policy" used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board's recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between "policy" and "implementation" drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz<mailto:jeff.neuman@neustar.biz> / www.neustar.biz<http://www.neustar.biz/>

Many thanks Brian. That's helpful. Jonathan From: Brian Peck [mailto:brian.peck@icann.org] Sent: 06 December 2012 17:15 To: Jonathan Robinson; 'Neuman, Jeff'; council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter Jonathan, In response to your question in relation to responding to the GAC on the issue of what was the impetus for the Council to take up the work on the IGO name protection issue, it may be helpful to note as background that the Board in its 11 March 2012 letter formally asked both the GAC and the GNSO Council for policy advice on the protection of IGO names: http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van- gelder-11mar12-en.pdf In addition, some of the other considerations taken into account for the Council requesting the Issues Report on the protection of International Organization names to include IGO names - including requests from IGOs to obtain the same level of of any protections provided to the RCRC and IOC, are noted in the motion adopted to request the Issues Report: http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm Thanks. Best Regards, Brian On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson@ipracon.com> wrote: Jeff, Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting. This approach takes it a step further and faster. Great. Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines: 1. Is the approach taken below one which you broadly do or do not support? 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved? 3. If no to 1 above, please explain why and how you suggest we approach this differently? 4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above? I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text. One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps? Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this? Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 05 December 2012 22:42 To: council@gnso.icann.org Subject: [council] Proposed Response to the GAC regarding November 28th Letter All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO's determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations "in all gTLDs." We are not aware of a bright line test to distinguish "policy" from "implementation" in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN's multi-stakeholder processes. For purposes of responding to your letter, however, the term "policy development" has traditionally applied to ICANN's consideration of an issue that is within the scope of ICANN's mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations ("IGO's") and international non-governmental organizations ("INGO's") at the top and second level meets the criteria described above. We do not dispute the validity of the GAC's advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee ("IOC") and the Red Cross/Red Crescent ("RC/RC") names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws - like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context - particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC's advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is "complementary" to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO's acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant's potential use of the applied-for gTLD would be likely to infringe the objector's existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time - including quite recently. The GNSO believes that the issues identified above fall within the definition of "policy" used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board's recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between "policy" and "implementation" drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz <mailto:jeff.neuman@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

Jeff, Jonathan, all, first of all, thank you Jeff and your colleagues for a well written and thoughtful draft letter. Following Jonathan's proposal, let me respond as follows: 1. Is the approach taken below one which you broadly do or do not support? I do support that aproach. 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved? A. I think it would be helpful to add some history, which we have discussed this during the IGO-INGO WG call. We might want to point out that the Reserved Names WG has dealt with this issue a few years back and - while not particularly having discussed the IOC RCRC, there was an intentional decision not to add such designations to the reserved names list. The group wanted to leave the protection to the RPMs. This point should be made IMHO because it underlines that this is a topic that has been part of policy making in the past and that it should not be dealt with differently. Even the IOC, in its letter of February 11, 2011, made a statement that clearly indicates that merely reserving the names is not in their interest and that an exemption procedure is needed, which requires policy work: The letter can be found here: http://www.icann.org/en/correspondence/lacotte-stupp-to-pritz-stathos-01feb1... B. Also, I would recommend we state that the original request was made regarding the IOC and RCRC only while stating that these organizations have a unique tapestry of protections, while it has now been opened to other IGO names. Hence, there must be some understanding that changing requirements require more time of analysis. C. ICANN's aim is to be globally inclusive and to serve all stakeholders. That means that, while we take the GAC's concerns and requests (not sure I would call it advice here since GAC Advice is a legal term reserved to the interaction with the Board in my view) seriously, it is imperative for the GNSO being ICANN's BUMS policy making body to also hear the arguments of other stakeholders prior to making recommendations. This is to ensure that legitimate interests of other stakeholders (e.g. legitimate use of designations in question) are also basis for a decision. D. In Jeff's proposal it is stated: Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. I would prefer not to give the impression that WE might be misunderstanding something, but rather invite the GAC to explain their understanding of the distinction between "policy" and "implementation" and that this will help the mutual understanding of approach and processes. E. We might wish to make reference to the point mentioned in the joint GAC / Board meeting that this topic shall serve as a case study and therefore invite the GAC to participate in the WG or present the idea of a Liaison, which was recently discussed. Thanks, Thomas Am 06.12.2012 um 19:51 schrieb "Neuman, Jeff" <Jeff.Neuman@neustar.us>:

Thanks. We did consider adding something like this to our draft letter, but in the end decided not to. It simply isn’t enough or helpful (in our view) to say the GNSO considered policy development activities on this because the board told us to do so in their resolution. After all, then it could be argued by others that the Board acted erroneously in telling us to consider it in the first place.

We wanted in a respectful way to point out that this does in fact involve policy, and we are the appropriate body to consider the policy issues, whether the Board tells us to or not.

Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs

From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: Thursday, December 06, 2012 1:42 PM To: 'Brian Peck'; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter

Many thanks Brian. That’s helpful. Jonathan

From: Brian Peck [mailto:brian.peck@icann.org] Sent: 06 December 2012 17:15 To: Jonathan Robinson; 'Neuman, Jeff'; council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter

Jonathan,

In response to your question in relation to responding to the GAC on the issue of what was the impetus for the Council to take up the work on the IGO name protection issue, it may be helpful to note as background that the Board in its 11 March 2012 letter formally asked both the GAC and the GNSO Council for policy advice on the protection of IGO names:

http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van-...

In addition, some of the other considerations taken into account for the Council requesting the Issues Report on the protection of International Organization names to include IGO names – including requests from IGOs to obtain the same level of of any protections provided to the RCRC and IOC, are noted in the motion adopted to request the Issues Report:

http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm

Thanks.

Best Regards,

Brian

On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson@ipracon.com> wrote:

Jeff,

Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting. This approach takes it a step further and faster. Great.

Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines:

1. Is the approach taken below one which you broadly do or do not support?

2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved?

3. If no to 1 above, please explain why and how you suggest we approach this differently?

4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above?

I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text.

One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps?

Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this?

Jonathan

From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 05 December 2012 22:42 To: council@gnso.icann.org Subject: [council] Proposed Response to the GAC regarding November 28th Letter

All,

In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on.

This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues.

Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response.

Thanks!

+++++++++++++++++++++++++++++++++++++++

Dear Madam Chair:

I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.”

We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes. For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above.

We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs.

Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently.

The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary.

Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz <mailto:jeff.neuman@neustar.biz> / www.neustar.biz<http://www.neustar.biz/>

___________________________________________________________ Thomas Rickert, Attorney at Law Managing Partner, Schollmeyer & Rickert Rechtsanwaltsgesellschaft mbH www.anwaelte.de Director Names & Numbers, eco Association of the German Internet Industry www.eco.de

In reviewing this, whilst I agree that it is insufficient to simply say that the board told us to. I think it may be worth noting, at least as part of our timeline. After all, we were formally requested by the board to provide policy advice and a request from the board for the GNSO to undertake policy work on an item or issue is a key basis on which we then might initiate a PDP. I suppose that the nuance here is that we were asked for policy advice not specifically to initiate a PDP. That said, in order for that policy advice to become binding on contracted parties, an outcome I believe that the GAC desires, we need to go through the PDP process. Thanks, Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 06 December 2012 18:51 To: Jonathan Robinson; 'Brian Peck'; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter Thanks. We did consider adding something like this to our draft letter, but in the end decided not to. It simply isn't enough or helpful (in our view) to say the GNSO considered policy development activities on this because the board told us to do so in their resolution. After all, then it could be argued by others that the Board acted erroneously in telling us to consider it in the first place. We wanted in a respectful way to point out that this does in fact involve policy, and we are the appropriate body to consider the policy issues, whether the Board tells us to or not. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: Thursday, December 06, 2012 1:42 PM To: 'Brian Peck'; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter Many thanks Brian. That's helpful. Jonathan From: Brian Peck [mailto:brian.peck@icann.org] Sent: 06 December 2012 17:15 To: Jonathan Robinson; 'Neuman, Jeff'; council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter Jonathan, In response to your question in relation to responding to the GAC on the issue of what was the impetus for the Council to take up the work on the IGO name protection issue, it may be helpful to note as background that the Board in its 11 March 2012 letter formally asked both the GAC and the GNSO Council for policy advice on the protection of IGO names: http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van- gelder-11mar12-en.pdf In addition, some of the other considerations taken into account for the Council requesting the Issues Report on the protection of International Organization names to include IGO names - including requests from IGOs to obtain the same level of of any protections provided to the RCRC and IOC, are noted in the motion adopted to request the Issues Report: http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm Thanks. Best Regards, Brian On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson@ipracon.com> wrote: Jeff, Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting. This approach takes it a step further and faster. Great. Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines: 1. Is the approach taken below one which you broadly do or do not support? 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved? 3. If no to 1 above, please explain why and how you suggest we approach this differently? 4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above? I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text. One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps? Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this? Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 05 December 2012 22:42 To: council@gnso.icann.org Subject: [council] Proposed Response to the GAC regarding November 28th Letter All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO's determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations "in all gTLDs." We are not aware of a bright line test to distinguish "policy" from "implementation" in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN's multi-stakeholder processes. For purposes of responding to your letter, however, the term "policy development" has traditionally applied to ICANN's consideration of an issue that is within the scope of ICANN's mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations ("IGO's") and international non-governmental organizations ("INGO's") at the top and second level meets the criteria described above. We do not dispute the validity of the GAC's advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee ("IOC") and the Red Cross/Red Crescent ("RC/RC") names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws - like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context - particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC's advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is "complementary" to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO's acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant's potential use of the applied-for gTLD would be likely to infringe the objector's existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time - including quite recently. The GNSO believes that the issues identified above fall within the definition of "policy" used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board's recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between "policy" and "implementation" drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz <mailto:jeff.neuman@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

Forwarded as a reminder. Jonathan. From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Brian Peck Sent: 06 December 2012 17:15 To: Jonathan Robinson; 'Neuman, Jeff'; council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter Jonathan, In response to your question in relation to responding to the GAC on the issue of what was the impetus for the Council to take up the work on the IGO name protection issue, it may be helpful to note as background that the Board in its 11 March 2012 letter formally asked both the GAC and the GNSO Council for policy advice on the protection of IGO names: http://www.icann.org/en/news/correspondence/crocker-beckstrom-to-dryden-van- gelder-11mar12-en.pdf In addition, some of the other considerations taken into account for the Council requesting the Issues Report on the protection of International Organization names to include IGO names - including requests from IGOs to obtain the same level of of any protections provided to the RCRC and IOC, are noted in the motion adopted to request the Issues Report: http://gnso.icann.org/en/meetings/minutes-council-12apr12-en.htm Thanks. Best Regards, Brian On 12/6/12 3:08 AM, "Jonathan Robinson" <jonathan.robinson@ipracon.com> wrote: Jeff, Many thanks to you and your colleagues for such a considered and comprehensive first draft. I had thought about trying to draw out key principles from discussion on the list and then drafting. This approach takes it a step further and faster. Great. Rather than collectively editing the text at this point, I suggest that councillors respond along the following lines: 1. Is the approach taken below one which you broadly do or do not support? 2. If yes to 1 above, please indicate if there are any additional areas not covered or areas that could be improved? 3. If no to 1 above, please explain why and how you suggest we approach this differently? 4. Are there any other substantive points not already covered in the letter and not covered in your responses to 1-3 above? I trust this will provide a structure for input before we go into a final drafting mode. Once we have been through this iteration, we can work on an approach which tweaks the final text. One overall question I have relates to the question posed by the GAC and implicit in our (draft) response to it below. Both seem to suggest (or presume) we have chosen as a Council to undertake this policy work. Is this actually the case (i.e. did we independently determine to undertake this work) or does the history indicate that we are in fact responding to a request from board (or elsewhere)? Mason helpfully provided sketched series of events on Friday last week but it is not 100% clear where the primary impetus for the GNSO undertaking this policy work came from? In any event, but along these lines, is it helpful or provocative to provide a sketch timeline of the key steps in this long process? As an appendix to the letter perhaps? Thank-you again Jeff and please indicate whether or not you are willing to / would like to continue to hold the pen on this? Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Neuman, Jeff Sent: 05 December 2012 22:42 To: council@gnso.icann.org Subject: [council] Proposed Response to the GAC regarding November 28th Letter All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO's determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations "in all gTLDs." We are not aware of a bright line test to distinguish "policy" from "implementation" in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN's multi-stakeholder processes. For purposes of responding to your letter, however, the term "policy development" has traditionally applied to ICANN's consideration of an issue that is within the scope of ICANN's mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations ("IGO's") and international non-governmental organizations ("INGO's") at the top and second level meets the criteria described above. We do not dispute the validity of the GAC's advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee ("IOC") and the Red Cross/Red Crescent ("RC/RC") names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws - like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context - particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC's advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is "complementary" to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO's acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant's potential use of the applied-for gTLD would be likely to infringe the objector's existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time - including quite recently. The GNSO believes that the issues identified above fall within the definition of "policy" used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board's recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between "policy" and "implementation" drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz <mailto:jeff.neuman@neustar.biz> / www.neustar.biz <http://www.neustar.biz/>

David and Mason, your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo. Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case. Thomas Am 11.12.2012 um 08:27 schrieb David Cake <dave@difference.com.au>:

I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff.

I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc.

Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making.

Regards

David

On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote:

...

All,

In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on.

This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues.

Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response.

Thanks!

+++++++++++++++++++++++++++++++++++++++

Dear Madam Chair:

I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.”

We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes. For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above.

We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs.

Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently.

The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary.

Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz / www.neustar.biz

___________________________________________________________ Thomas Rickert, Rechtsanwalt Schollmeyer & Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm) Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert HRB 9262, AG Bonn Büro / Office Bonn: Kaiserplatz 7-9, 53113 Bonn, Germany Phone: +49 (0)228 74 898 - 0 Büro / Office Frankfurt a.M.: Savignystraße 43, 60325 Frankfurt, Germany Phone: +49 (0)69 714 021 - 56 Zentralfax: +49 (0)228 74 898 - 66 mailto: rickert@anwaelte.de skype-id: trickert web: www.anwaelte.de

Jonathan, I agree with your proposal. Best regards, Osvaldo ________________________________ De: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] En nombre de Jonathan Robinson Enviado el: Martes, 11 de Diciembre de 2012 09:45 Para: council@gnso.icann.org Asunto: RE: [council] Proposed Response to the GAC regarding November 28th Letter All, Good contributions from various Councillors. Great to see. Thanks all for getting fully engaged with this important issue. My reading is that we now have to resolve a couple of substantial points before fine-tuning the draft. I believe that the points are as follows: 1. Do we include the history? If so where? I think I am in favour but as a factual summary of key points in an appendix / second page. The motivation is to put it on record and as background or context for this reply. I suspect that many (including in the GAC) will read this exchange in isolation and not have a good grasp on the history. 2. Policy v Implementation? Agree with Thomas that we should state our view politely and clearly but not suggest that we may not understand accurately. Perhaps here an invitation to the GAC to provide their view by contributing it to any future work (working group) that looks into this? Here I should note that I suspect that the GAC feels that it is able to participate and contribute, but not necessarily at the WG level in the same way as many of us do. Please feel free to support 1 & 2 above or disagree / re-iterate your view. Also, please comment if I have missed any substantial points. Thereafter, I think we should proceed to fine-tuning the draft. Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Thomas Rickert Sent: 11 December 2012 09:41 To: David Cake Cc: council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter David and Mason, your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo. Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case. Thomas Am 11.12.2012 um 08:27 schrieb David Cake <dave@difference.com.au<mailto:dave@difference.com.au>>: I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff. I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc. Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making. Regards David On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote: All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO's determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations "in all gTLDs." We are not aware of a bright line test to distinguish "policy" from "implementation" in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN's multi-stakeholder processes. For purposes of responding to your letter, however, the term "policy development" has traditionally applied to ICANN's consideration of an issue that is within the scope of ICANN's mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations ("IGO's") and international non-governmental organizations ("INGO's") at the top and second level meets the criteria described above. We do not dispute the validity of the GAC's advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee ("IOC") and the Red Cross/Red Crescent ("RC/RC") names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws - like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context - particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC's advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is "complementary" to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO's acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant's potential use of the applied-for gTLD would be likely to infringe the objector's existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time - including quite recently. The GNSO believes that the issues identified above fall within the definition of "policy" used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board's recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between "policy" and "implementation" drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / jeff.neuman@neustar.biz<mailto:jeff.neuman@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> ___________________________________________________________ Thomas Rickert, Rechtsanwalt Schollmeyer & Rickert Rechtsanwaltsgesellschaft m.b.H. 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Thanks Jeff, History – Concise summary of key dates and events (picking up from Mason’s previous work). Any volunteers? I do not believe a motion is required. We seem to be moving towards consensus on the substantial points on list. I’d like to work with you on refining the text (since my name will be on it!) but that will be about minor details AOT substance. Jonathan From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: 11 December 2012 15:13 To: Jonathan Robinson; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter All, I am fine with having the history in an appendix if someone can draft that up. With respect to the “misunderstanding” language, I am also fine with removing that language as well. Jonathan, are we going to need a motion to approve the letter? I don’t believe we do. But, if we do, then we need to draft it by tomorrow to get it on the agenda, right? Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: Tuesday, December 11, 2012 6:45 AM To: council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter All, Good contributions from various Councillors. Great to see. Thanks all for getting fully engaged with this important issue. My reading is that we now have to resolve a couple of substantial points before fine-tuning the draft. I believe that the points are as follows: 1. Do we include the history? If so where? I think I am in favour but as a factual summary of key points in an appendix / second page. The motivation is to put it on record and as background or context for this reply. I suspect that many (including in the GAC) will read this exchange in isolation and not have a good grasp on the history. 2. Policy v Implementation? Agree with Thomas that we should state our view politely and clearly but not suggest that we may not understand accurately. Perhaps here an invitation to the GAC to provide their view by contributing it to any future work (working group) that looks into this? Here I should note that I suspect that the GAC feels that it is able to participate and contribute, but not necessarily at the WG level in the same way as many of us do. Please feel free to support 1 & 2 above or disagree / re-iterate your view. Also, please comment if I have missed any substantial points. Thereafter, I think we should proceed to fine-tuning the draft. Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Thomas Rickert Sent: 11 December 2012 09:41 To: David Cake Cc: council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter David and Mason, your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo. Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case. Thomas Am 11.12.2012 um 08:27 schrieb David Cake <dave@difference.com.au>: I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff. I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc. Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making. Regards David On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote: All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.” We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes. For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above. We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently. The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / <mailto:jeff.neuman@neustar.biz> jeff.neuman@neustar.biz / <http://www.neustar.biz/> www.neustar.biz ___________________________________________________________ Thomas Rickert, Rechtsanwalt Schollmeyer & Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm) Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert HRB 9262, AG Bonn Büro / Office Bonn: Kaiserplatz 7-9, 53113 Bonn, Germany Phone: +49 (0)228 74 898 - 0 Büro / Office Frankfurt a.M.: Savignystraße 43, 60325 Frankfurt, Germany Phone: +49 (0)69 714 021 - 56 Zentralfax: +49 (0)228 74 898 - 66 mailto: rickert@anwaelte.de skype-id: trickert web: www.anwaelte.de

Berry, Thank-you. That is very helpful. It seems to me that a link to this page may suffice. If we re-write, we risk creating an inconsistency between the two. I suggest that we therefore: a. Check your version and provide any comment or input on it b. Refer to it and provide a link in our / my reply to the GAC. Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Berry Cobb Sent: 11 December 2012 16:59 To: 'Jonathan Robinson'; 'Neuman, Jeff'; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter As an FYI, On the GNSO website, there is a page dedicated to IOC/RCRC DT. It contains a chronological order of key events/milestones from the DT. It will probably be a good reference to documenting the past, if not just only include a link to the page. http://gnso.icann.org/en/group-activities/red-cross-ioc.htm If you happen to see anything that I may have missed, please send me an email off-list, and I will be happy to update the page accordingly. Thank you. B Berry Cobb Internet Corporation for Assigned Names & Numbers (ICANN) 720.839.5735 mail@berrycobb.com @berrycobb From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: Tuesday, December 11, 2012 09:46 To: 'Neuman, Jeff'; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter Thanks Jeff, History – Concise summary of key dates and events (picking up from Mason’s previous work). Any volunteers? I do not believe a motion is required. We seem to be moving towards consensus on the substantial points on list. I’d like to work with you on refining the text (since my name will be on it!) but that will be about minor details AOT substance. Jonathan From: Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] Sent: 11 December 2012 15:13 To: Jonathan Robinson; council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter All, I am fine with having the history in an appendix if someone can draft that up. With respect to the “misunderstanding” language, I am also fine with removing that language as well. Jonathan, are we going to need a motion to approve the letter? I don’t believe we do. But, if we do, then we need to draft it by tomorrow to get it on the agenda, right? Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Jonathan Robinson Sent: Tuesday, December 11, 2012 6:45 AM To: council@gnso.icann.org Subject: RE: [council] Proposed Response to the GAC regarding November 28th Letter All, Good contributions from various Councillors. Great to see. Thanks all for getting fully engaged with this important issue. My reading is that we now have to resolve a couple of substantial points before fine-tuning the draft. I believe that the points are as follows: 1. Do we include the history? If so where? I think I am in favour but as a factual summary of key points in an appendix / second page. The motivation is to put it on record and as background or context for this reply. I suspect that many (including in the GAC) will read this exchange in isolation and not have a good grasp on the history. 2. Policy v Implementation? Agree with Thomas that we should state our view politely and clearly but not suggest that we may not understand accurately. Perhaps here an invitation to the GAC to provide their view by contributing it to any future work (working group) that looks into this? Here I should note that I suspect that the GAC feels that it is able to participate and contribute, but not necessarily at the WG level in the same way as many of us do. Please feel free to support 1 & 2 above or disagree / re-iterate your view. Also, please comment if I have missed any substantial points. Thereafter, I think we should proceed to fine-tuning the draft. Jonathan From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Thomas Rickert Sent: 11 December 2012 09:41 To: David Cake Cc: council@gnso.icann.org Subject: Re: [council] Proposed Response to the GAC regarding November 28th Letter David and Mason, your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo. Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case. Thomas Am 11.12.2012 um 08:27 schrieb David Cake <dave@difference.com.au>: I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff. I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc. Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making. Regards David On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote: All, In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on. This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues. Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response. Thanks! +++++++++++++++++++++++++++++++++++++++ Dear Madam Chair: I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO’s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations “in all gTLDs.” We are not aware of a bright line test to distinguish “policy” from “implementation” in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN’s multi-stakeholder processes. For purposes of responding to your letter, however, the term “policy development” has traditionally applied to ICANN’s consideration of an issue that is within the scope of ICANN’s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (“IGO’s”) and international non-governmental organizations (“INGO’s”) at the top and second level meets the criteria described above. We do not dispute the validity of the GAC’s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (“IOC”) and the Red Cross/Red Crescent (“RC/RC”) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws – like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context – particularly at the second level and in both new and existing TLDs. Likewise, we do not dispute the validity of the GAC’s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is “complementary” to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO’s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant’s potential use of the applied-for gTLD would be likely to infringe the objector’s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time – including quite recently. The GNSO believes that the issues identified above fall within the definition of “policy” used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board’s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work. Perhaps we are misunderstanding the distinction between “policy” and “implementation” drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs 46000 Center Oak Plaza, Sterling, VA 20166 Office: +1.571.434.5772 Mobile: +1.202.549.5079 Fax: +1.703.738.7965 / <mailto:jeff.neuman@neustar.biz> jeff.neuman@neustar.biz / <http://www.neustar.biz/> www.neustar.biz ___________________________________________________________ Thomas Rickert, Rechtsanwalt Schollmeyer & Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm) Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert HRB 9262, AG Bonn Büro / Office Bonn: Kaiserplatz 7-9, 53113 Bonn, Germany Phone: +49 (0)228 74 898 - 0 Büro / Office Frankfurt a.M.: Savignystraße 43, 60325 Frankfurt, Germany Phone: +49 (0)69 714 021 - 56 Zentralfax: +49 (0)228 74 898 - 66 mailto: rickert@anwaelte.de skype-id: trickert web: www.anwaelte.de

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Hi all- thanks very much Jeff for taking the lead on this and also other Councillors for the substantive comments. I agree with this broad approach. Joy On 12/12/2012 5:46 a.m., Jonathan Robinson wrote:

Thanks Jeff,

History ? Concise summary of key dates and events (picking up from Mason?s previous work). Any volunteers?

I do not believe a motion is required. We seem to be moving towards consensus on the substantial points on list.

I?d like to work with you on refining the text (since my name will be on it!) but that will be about minor details AOT substance.

Jonathan

*From:*Neuman, Jeff [mailto:Jeff.Neuman@neustar.us] *Sent:* 11 December 2012 15:13 *To:* Jonathan Robinson; council@gnso.icann.org *Subject:* RE: [council] Proposed Response to the GAC regarding November 28th Letter

All,

I am fine with having the history in an appendix if someone can draft that up. With respect to the ?misunderstanding? language, I am also fine with removing that language as well.

Jonathan, are we going to need a motion to approve the letter? I don?t believe we do. But, if we do, then we need to draft it by tomorrow to get it on the agenda, right?

*Jeffrey J. Neuman** **Neustar, Inc. / Vice President, Business Affairs*

*From:*owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] *On Behalf Of *Jonathan Robinson *Sent:* Tuesday, December 11, 2012 6:45 AM *To:* council@gnso.icann.org <mailto:council@gnso.icann.org> *Subject:* RE: [council] Proposed Response to the GAC regarding November 28th Letter

All,

Good contributions from various Councillors. Great to see. Thanks all for getting fully engaged with this important issue.

My reading is that we now have to resolve a couple of substantial points before fine-tuning the draft. I believe that the points are as follows:

1. Do we include the history? If so where? I think I am in favour but as a factual summary of key points in an appendix / second page. The motivation is to put it on record and as background or context for this reply. I suspect that many (including in the GAC) will read this exchange in isolation and not have a good grasp on the history.

2. Policy v Implementation? Agree with Thomas that we should state our view politely and clearly but not suggest that we may not understand accurately. Perhaps here an invitation to the GAC to provide their view by contributing it to any future work (working group) that looks into this? Here I should note that I suspect that the GAC feels that it is able to participate and contribute, but not necessarily at the WG level in the same way as many of us do.

Please feel free to support 1 & 2 above or disagree / re-iterate your view. Also, please comment if I have missed any substantial points.

Thereafter, I think we should proceed to fine-tuning the draft.

Jonathan

*From:*owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] *On Behalf Of *Thomas Rickert *Sent:* 11 December 2012 09:41 *To:* David Cake *Cc:* council@gnso.icann.org <mailto:council@gnso.icann.org> *Subject:* Re: [council] Proposed Response to the GAC regarding November 28th Letter

David and Mason,

your point regarding the GAC is well understood. I will not try to convince you of my proposal, but let me explain that I made the proposal since I would very much like to hear the GAC's view on this. That does not mean that this view is going to be adopted by us. Also, getting input on the GAC's understanding of the demarkation of policy vs implementation helps us understand the GAC better and maybe respond to that to improve the working relationshipo.

Anyway, even if the group wishes not to ask the GAC for its view, please amend the language so it does not say that we might misunderstand something. I think we should not populate the idea that we might be wrong as I truly believe that this is not the case.

Thomas

Am 11.12.2012 um 08:27 schrieb David Cake <dave@difference.com.au <mailto:dave@difference.com.au>>:

I admire the very non-confrontational yet clear tone of the letter - I don't think I'd be able to manage that tone on this issue. Thank you Jeff.

I'm fine with the descriptions of the specific issue here, clearly setting out that there are numerous specific issues not addressed in the GACs advice etc.

Like Mason, I'm not sure we should ask the GAC for its determination of policy vs implementation, for a wide range of reasons. As Mason points out, a decision being 'implementation' isn't necessarily grounds for excluding policy making structures such as the GNSO from decision making.

Regards

David

On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote:

All,

In the past few days, a few of us at Neustar have been thinking about a proposed response to the November 28^th letter from the GAC to the GNSO on the determination to initiate a PDP on the protection of names of international organizations. Given that we should be drafting a response, we took a stab at coming up with a first draft to get your input on.

This is just a first draft, but one which we believe sets the right non-confrontational tone on some issues that we know are sensitive to a number of GAC members (and ICANN community members alike). We have also taken a stab at defining how policy development has traditionally applied to ICANN activities before the whole onslaught of new gTLD issues.

Please let me know your thoughts on this letter and whether this serves as a good starting point to finalize a response.

Thanks!

+++++++++++++++++++++++++++++++++++++++

Dear Madam Chair:

I am writing in response to your letter dated 28 November 2012 seeking information about the GNSO?s determination to initiate a Policy Development Process (PDP) on the protection of the names of international organizations ?in all gTLDs.?

We are not aware of a bright line test to distinguish ?policy? from ?implementation? in general, or in the ICANN context, and believe that this question might benefit from further review and consideration within ICANN?s multi-stakeholder processes. For purposes of responding to your letter, however, the term ?policy development? has traditionally applied to ICANN?s consideration of an issue that is within the scope of ICANN?s mission statement and involves developing an approach that (1) is broadly applicable to multiple situations or organizations; (2) is likely to have lasting value of applicability; (3) will establish a guide or framework for future decision-making; and/or (4) implicates or affects an existing ICANN policy. The ICANN Board, the ICANN staff, and the GNSO has each concluded at different points that the question of enhanced protections for international governmental organizations (?IGO?s?) and international non-governmental organizations (?INGO?s?) at the top and second level meets the criteria described above.

We do not dispute the validity of the GAC?s advice to the ICANN Board in May 2011 regarding protections for the International Olympic Committee (?IOC?) and the Red Cross/Red Crescent (?RC/RC?) names, nor do we dispute the fact that ICANN received preliminary legal advice that some 60 countries protect certain intellectual properties of the IOC and RC/RC. We note, however, that most such laws ? like the Nairobi Treaty on the Protection of the Olympic Symbol itself - provide exceptions for non-commercial uses, pre-existing commercial uses, and certain geographic references, among other things. (To our knowledge, however, these laws would not create intermediary liability or impose affirmative obligations on ICANN, registries, and/or registrars with respect to third party registrations.) In any case, policy development is needed to determine what, if any, exceptions (i.e., for pre-existing, non-commercial, and/or geographic use) should apply in the domain name context ? particularly at the second level and in both new and existing TLDs.

Likewise, we do not dispute the validity of the GAC?s advice in Toronto with respect to the use of the current .int registration requirements as a starting basis for protection of IGO names and acronyms. We also appreciate your point that this advice is ?complementary? to the provision of the Applicant Guidebook permitting use of the .int registration criteria as the basis for IGOs to file a Legal Rights Objection to a new gTLD application. We do not understand, however, how a prohibition of even non-infringing uses of an IGO?s acronym at the first or second level is merely an implementation of the Legal Rights Objection policy, which provides for an independent panel to determine whether an applicant?s potential use of the applied-for gTLD would be likely to infringe the objector?s existing IGO name or acronym. The views and perspectives of various participants in this discussion, including those of the Governmental Advisory Committee, have evolved over time ? including quite recently.

The GNSO believes that the issues identified above fall within the definition of ?policy? used by ICANN. We understand, of course, that the policy development process can be time consuming. We also understand that some may view resort to policy development as a delaying or blocking tactic. With respect to the question of enhanced protections for international governmental organizations, however, the GNSO has attempted to find practical solutions to ensure that reasonable protections are in place during the pendency of the policy discussions. That approach is reflected in the ICANN Board?s recent resolutions to create a moratorium on registration of certain names at the second level pending this policy work.

Perhaps we are misunderstanding the distinction between ?policy? and ?implementation? drawn by the GAC, and, as previously stated, the GNSO Council would welcome further dialogue on this point. Meanwhile, we do take seriously our obligation to respond in a collaborative, timely and transparent way when policy development is necessary.

*Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs* 46000 Center Oak Plaza, Sterling, VA 20166 *Office:** *+1.571.434.5772 *Mobile: *+1.202.549.5079 *Fax: *+1.703.738.7965 */* jeff.neuman@neustar.biz <mailto:jeff.neuman@neustar.biz> */* www.neustar.biz <http://www.neustar.biz/>

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