Re: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group"
Phil – Thank you for the quick turn on this analysis. Councilors – Recognizing that this proposal came after our agenda deadline, but please try to review it if you have a chance before our next call. If possible, we will add it as a discussion item under AOB. Thank you, J. From: <owner-council@gnso.icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com> Date: Thursday, October 6, 2016 at 17:20 To: GNSO Council List <council@gnso.icann.org> Subject: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" Fellow Councilors: As Co-Chair of the Working Group reviewing Curative Rights Processes (CRP) for International Intergovernmental Organizations (IGOs), I feel it incumbent to provide my initial reaction to this Board letter. In doing so I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition. The CRP WG has labored for the last two years to develop a report and recommendations that are objective and based in fact and relevant law. In order to assure that our conclusions were sound, we suspended our work for nearly one year in order to locate and secure the services of a legal expert on the central subject of the generally recognized scope of IGO sovereign immunity. During this period we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them. Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks? Turning to the relevant substance of the Board letter and the attached IGO “Small Group” Proposal, I note that this Proposal statement is demonstrably incorrect— The IGO-GAC-NGPC small group that has been discussing the topic of appropriate IGO protections, based on the NGPC’s initial proposal of March 2014, agree that the following general principles should underpin the framework for any permanent solution concerning the protection of IGO names and acronyms in the domain name system: (1) The basis for protection of IGO acronyms should not be founded in trademark law, as IGOs are created by governments under international law and are in an objectively different category of rights-holders; (Emphasis added) In fact, our WG found that many IGOs have trademarked their organizational names and acronyms and have successfully utilized the UDRP. Further, and more relevant, Article 6ter of the Paris Convention provides IGOs with protection of their names and acronyms within the trademark law systems of all Convention signatories, as well as all members of the World Trade Organization, with such protection available through a simple registration procedure with WIPO. So, contrary to the statement quoted above, the basis for IGO acronym protections has already been linked to trademark law. Turning to the relevant portion of the IGO Proposal--- 2. Dispute Resolution Mechanism • ICANN will facilitate the development of rules and procedures for a separate(i.e., separate from the existing UDRP) dispute resolution mechanism to resolve claims of abuse of domain names that are registered and being used in situations where the registrant is pretending to be the IGO or that are otherwise likely to result in fraud or deception, and (a) are identical to an IGO acronym; (b) are confusingly similar to an IGO acronym; or (c) contain the IGO acronym. • Decisions resulting from this mechanism shall be “appealable” through an arbitral process to be agreed. --While our WG is in the process of vetting our preliminary report and recommendations, because it has operated transparently it is no secret that it has decided against creation of a new DRP for the sole and exclusive use of IGOs because there is no demonstrated need to do so. Further, as regards availability of arbitration for appeals from initial CRP decisions, while that matter is still being finalized by the WG, to the extent it is premised upon broad claims of IGO sovereign immunity such claims are not generally supported by existing legal views according to the report received from our retained expert on international law. Here are some other preliminary observations: · The timing of this letter, and the specific DRP recommendations contained in the attached Proposal, are likely to complicate final agreement within the WG on our preliminary report and recommendations. IGOs, having chosen not to meaningfully participate in the WG, are now disrupting its final stage. · It appears that the proposal we have just received has not been endorsed by the Board, but is simply the IGO small group’s “consensus on a proposal for a number of general principles and suggestions that it hopes will be acceptable to the GAC and the GNSO”. Although these IGOs have not meaningfully participated in our WG, they are known to have monitored our work closely enough that they surely know that these proposals stand in stark opposition to the WG’s preliminary conclusions. Finally, in regard to this statement in the Board letter— The Board’s understanding is that those aspects of the proposal that concern curative rights protection may be referred by the GNSO Council to the GNSO’s Working Group that is conducting the ongoing Policy Development Process (PDP) on IGO-INGO Access to Curative Rights Mechanisms. We understand further that the Working Group is currently discussing preliminary recommendations that it intends to publish for public comment soon, in the form of an Initial Report. We therefore hope that the presentation of the attached proposal is timely, and will be fully considered by the Working Group regarding the specific topic of enabling adequate curative rights protections for IGO acronyms, and in conjunction with the GNSO Council’s management of the overall process for possible reconciliation of GNSO policy with GAC advice. We also acknowledge, in line with prior correspondence between the Board’s New gTLD Program Committee and the GNSO Council, that the Board will not take action with respect to GAC advice on curative rights protections for IGOs prior to the conclusion of the GNSO’s PDP. - I appreciate the Board’s assurance that it will take no action with respect to GAC advice on CRP for IGOs until the current PDP is concluded. I further note that ICANN staff has already transmitted the Board letter and attached IGO Proposal to all members of the CRP WG and, following consultation with my Co-Chair, it will likely be the main topic of discussion at the WG’s next meeting on October 13th. I can assure you that the Proposal will be fully considered by the WG. However, given the fact that the Proposal is at nearly complete odds with the WG’s preliminary conclusions, and that the IGOs chose not to participate in the WG in any significant way and thereby take advantage of the opportunity to make their case to those community volunteers who have labored in good faith on this project for more than two years, it is most unlikely that the WG will now abandon its own conclusions and adopt those of the IGOs. The Board letter closes with the observation that it wants to “ reiterate our belief that the most appropriate approach for the Board in this matter is to help to facilitate a procedural way forward for the reconciliation of GAC advice and GNSO policy prior to the Board formally considering substantive policy recommendations”. With all respect, what has occurred seems a thoroughly inappropriate approach for reconciling GAC advice and GNSO policy. This Council has undertaken extraordinary steps to conduct outreach to the GAC and to strive to integrate it within the GNSO policy development process, and much of that progress is at risk of being undone by how this matter is ultimately decided. What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board. Therefore, how the GNSO and the Board ultimately resolve this matter will have implications far beyond the narrow issue of available CRPs for IGOs. If IGOs are successful in attaining their policy aims through the course of action they have pursued it will send a most unfortunate message that will be detrimental to the functioning of an ICANN in which community members representing business, technology, and civil society are supposed to have the lead role in setting policy, and in which governments are supposed to have a secondary, advisory role. Sincerely, Philip S. Corwin Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mary Wong Sent: Thursday, October 06, 2016 5:03 PM To: GNSO Council List Cc: Steve Crocker; Chris Disspain; bruce.tonkin@melbourneit.com.au; Markus Kummer; Becky Burr; board-ops-team@icann.org Subject: [council] Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" Dear Councilors, Please find attached the ICANN Board’s reply to the GNSO Council’s letter of 31 May 2016 on the topic of protections for IGOs and the Red Cross. The letter also includes the final proposal on IGO acronyms protection that was worked on by the IGO “small group” of IGO, Board and GAC representatives, facilitated by ICANN staff as appropriate. We will also transmit a copy of this to the co-chairs of the GNSO IGO-INGO Curative Rights Protections PDP Working Group and the GAC. Best regards, Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org<mailto:mary.wong@icann.org> Telephone: +1-603-5744889 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13157 - Release Date: 10/06/16
Thanks very much, James. To add to my initial email, the WG’s report recommendations will clarify that IGOs can have standing to utilize existing CRPs even without having registered their names and acronyms as trademarks, and to utilize those processes through means that preserve their claims of sovereign immunity while respecting the legal rights of registrants under national law. There should be no misimpression that we have ignored the legitimate concerns of IGOs or failed to propose significant improvements to their benefit. I would be happy to respond to any questions that Councilors might have concerning the WG’s process and tentative conclusions. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: James M. Bladel [mailto:jbladel@godaddy.com] Sent: Thursday, October 06, 2016 10:00 PM To: Phil Corwin; council@gnso.icann.org Subject: Re: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" Phil – Thank you for the quick turn on this analysis. Councilors – Recognizing that this proposal came after our agenda deadline, but please try to review it if you have a chance before our next call. If possible, we will add it as a discussion item under AOB. Thank you, J. From: <owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org>> on behalf of Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Thursday, October 6, 2016 at 17:20 To: GNSO Council List <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" Fellow Councilors: As Co-Chair of the Working Group reviewing Curative Rights Processes (CRP) for International Intergovernmental Organizations (IGOs), I feel it incumbent to provide my initial reaction to this Board letter. In doing so I note that transmission of the letter has been delayed until after the completion of the IANA transition, and that the post-transition role of governments within ICANN was a central controversy surrounding the transition. The CRP WG has labored for the last two years to develop a report and recommendations that are objective and based in fact and relevant law. In order to assure that our conclusions were sound, we suspended our work for nearly one year in order to locate and secure the services of a legal expert on the central subject of the generally recognized scope of IGO sovereign immunity. During this period we continually urged members of the GAC, and IGOs, to participate in our WG. That participation was so sporadic that it amounted to a near-boycott, and when IGO representatives did provide any input they stressed that they were speaking solely as individuals and were not providing the official views of the organizations that employed them. Of course, why should they participate in the GNSO policy processes when they are permitted to pursue their goals in extended closed door discussions with the Board, and when the Board seeks no input from the GNSO in the course of those talks? Turning to the relevant substance of the Board letter and the attached IGO “Small Group” Proposal, I note that this Proposal statement is demonstrably incorrect— The IGO-GAC-NGPC small group that has been discussing the topic of appropriate IGO protections, based on the NGPC’s initial proposal of March 2014, agree that the following general principles should underpin the framework for any permanent solution concerning the protection of IGO names and acronyms in the domain name system: (1) The basis for protection of IGO acronyms should not be founded in trademark law, as IGOs are created by governments under international law and are in an objectively different category of rights-holders; (Emphasis added) In fact, our WG found that many IGOs have trademarked their organizational names and acronyms and have successfully utilized the UDRP. Further, and more relevant, Article 6ter of the Paris Convention provides IGOs with protection of their names and acronyms within the trademark law systems of all Convention signatories, as well as all members of the World Trade Organization, with such protection available through a simple registration procedure with WIPO. So, contrary to the statement quoted above, the basis for IGO acronym protections has already been linked to trademark law. Turning to the relevant portion of the IGO Proposal--- 2. Dispute Resolution Mechanism • ICANN will facilitate the development of rules and procedures for a separate(i.e., separate from the existing UDRP) dispute resolution mechanism to resolve claims of abuse of domain names that are registered and being used in situations where the registrant is pretending to be the IGO or that are otherwise likely to result in fraud or deception, and (a) are identical to an IGO acronym; (b) are confusingly similar to an IGO acronym; or (c) contain the IGO acronym. • Decisions resulting from this mechanism shall be “appealable” through an arbitral process to be agreed. --While our WG is in the process of vetting our preliminary report and recommendations, because it has operated transparently it is no secret that it has decided against creation of a new DRP for the sole and exclusive use of IGOs because there is no demonstrated need to do so. Further, as regards availability of arbitration for appeals from initial CRP decisions, while that matter is still being finalized by the WG, to the extent it is premised upon broad claims of IGO sovereign immunity such claims are not generally supported by existing legal views according to the report received from our retained expert on international law. Here are some other preliminary observations: • The timing of this letter, and the specific DRP recommendations contained in the attached Proposal, are likely to complicate final agreement within the WG on our preliminary report and recommendations. IGOs, having chosen not to meaningfully participate in the WG, are now disrupting its final stage. • It appears that the proposal we have just received has not been endorsed by the Board, but is simply the IGO small group’s “consensus on a proposal for a number of general principles and suggestions that it hopes will be acceptable to the GAC and the GNSO”. Although these IGOs have not meaningfully participated in our WG, they are known to have monitored our work closely enough that they surely know that these proposals stand in stark opposition to the WG’s preliminary conclusions. Finally, in regard to this statement in the Board letter— The Board’s understanding is that those aspects of the proposal that concern curative rights protection may be referred by the GNSO Council to the GNSO’s Working Group that is conducting the ongoing Policy Development Process (PDP) on IGO-INGO Access to Curative Rights Mechanisms. We understand further that the Working Group is currently discussing preliminary recommendations that it intends to publish for public comment soon, in the form of an Initial Report. We therefore hope that the presentation of the attached proposal is timely, and will be fully considered by the Working Group regarding the specific topic of enabling adequate curative rights protections for IGO acronyms, and in conjunction with the GNSO Council’s management of the overall process for possible reconciliation of GNSO policy with GAC advice. We also acknowledge, in line with prior correspondence between the Board’s New gTLD Program Committee and the GNSO Council, that the Board will not take action with respect to GAC advice on curative rights protections for IGOs prior to the conclusion of the GNSO’s PDP. - I appreciate the Board’s assurance that it will take no action with respect to GAC advice on CRP for IGOs until the current PDP is concluded. I further note that ICANN staff has already transmitted the Board letter and attached IGO Proposal to all members of the CRP WG and, following consultation with my Co-Chair, it will likely be the main topic of discussion at the WG’s next meeting on October 13th. I can assure you that the Proposal will be fully considered by the WG. However, given the fact that the Proposal is at nearly complete odds with the WG’s preliminary conclusions, and that the IGOs chose not to participate in the WG in any significant way and thereby take advantage of the opportunity to make their case to those community volunteers who have labored in good faith on this project for more than two years, it is most unlikely that the WG will now abandon its own conclusions and adopt those of the IGOs. The Board letter closes with the observation that it wants to “ reiterate our belief that the most appropriate approach for the Board in this matter is to help to facilitate a procedural way forward for the reconciliation of GAC advice and GNSO policy prior to the Board formally considering substantive policy recommendations”. With all respect, what has occurred seems a thoroughly inappropriate approach for reconciling GAC advice and GNSO policy. This Council has undertaken extraordinary steps to conduct outreach to the GAC and to strive to integrate it within the GNSO policy development process, and much of that progress is at risk of being undone by how this matter is ultimately decided. What is at stake in this matter goes far beyond the relatively rare instance in which a domain registrant infringes upon the name or acronym of an IGO and the IGO seeks relief through a CRP. The larger issue is whether, in a post-transition ICANN, the GAC and the UN agencies that comprise a large portion of IGOs, will participate meaningfully in GNSO policy activities, or will seek their policy aims by bypassing the ICANN community and engaging in direct, closed door discussions with the Board. Therefore, how the GNSO and the Board ultimately resolve this matter will have implications far beyond the narrow issue of available CRPs for IGOs. If IGOs are successful in attaining their policy aims through the course of action they have pursued it will send a most unfortunate message that will be detrimental to the functioning of an ICANN in which community members representing business, technology, and civil society are supposed to have the lead role in setting policy, and in which governments are supposed to have a secondary, advisory role. Sincerely, Philip S. Corwin Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Mary Wong Sent: Thursday, October 06, 2016 5:03 PM To: GNSO Council List Cc: Steve Crocker; Chris Disspain; bruce.tonkin@melbourneit.com.au<mailto:bruce.tonkin@melbourneit.com.au>; Markus Kummer; Becky Burr; board-ops-team@icann.org<mailto:board-ops-team@icann.org> Subject: [council] Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" Dear Councilors, Please find attached the ICANN Board’s reply to the GNSO Council’s letter of 31 May 2016 on the topic of protections for IGOs and the Red Cross. The letter also includes the final proposal on IGO acronyms protection that was worked on by the IGO “small group” of IGO, Board and GAC representatives, facilitated by ICANN staff as appropriate. We will also transmit a copy of this to the co-chairs of the GNSO IGO-INGO Curative Rights Protections PDP Working Group and the GAC. Best regards, Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org<mailto:mary.wong@icann.org> Telephone: +1-603-5744889 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13157 - Release Date: 10/06/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13159 - Release Date: 10/06/16
James,
If possible, we will add it as a discussion item under AOB.
Yes, please - I think we do need to discuss this as soon as possible, and have a clear position. Julf
I would point out that neither the Board nor GAC has endorsed what the IGO small group has proposed. As the cover letter states, " I am pleased to inform you that the Board has been notified that the small group has reached consensus on a proposal for a number of general principles and suggestions that it hopes will be acceptable to the GAC and the GNSO. I attach that proposal to this letter for the GNSO’s review.” This is the same small group of IGOs that has been conspicuous in its absence from almost the entire established process in which the GNSO-created WG examining CRP for IGOs has sought to provide greater protection of their legitimate rights. I would also point out that what the Proposal contains under point 2, Dispute Resolution Mechanisms, is just two broad principles without any additional detail. There is zero in the way of legal or other justification for the position taken, and nothing in the way of proposed rules, procedures, or suggested venues for the new and separate DRP they are seeking. The first principle has been effectively addressed by the CRP WG and our report and recommendations will clarify the ready means by which IGOs may establish standing to use the UDRP and URS in a manner that shields any sovereign immunity they believe they possess. The second principle has been fully considered and mostly rejected by the WG, with one narrow element still under final discussion. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: Johan Helsingius [mailto:julf@julf.com] Sent: Friday, October 07, 2016 6:30 AM To: James M. Bladel; Phil Corwin; council@gnso.icann.org Subject: Re: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group" James,
If possible, we will add it as a discussion item under AOB.
Yes, please - I think we do need to discuss this as soon as possible, and have a clear position. Julf ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13159 - Release Date: 10/06/16
participants (3)
-
James M. Bladel -
Johan Helsingius -
Phil Corwin