All,
I agree with Phil’s message below, and think the GAC has strayed into the details of policy-making rather than the high level input of policy advice it normally gives. While the GAC may prefer a new dispute resolution
mechanism, the fact is that creating one is a very difficult task, and probably unnecessary. As the US Trademark Office and other trademark offices have methods for reviewing IGO Certifications alongside pending trademark registrations (to evaluate overlap
of services and confusion of names), so too could such a process, if appropriate, be fairly straightforward to adopt into the UDRP. But to create a standalone new process – yikes!
As many of you know, I served on the final drafting team of the UDRP – and would not like to repeat the experience.
Best,
Kathy (Kleiman)
From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org]
On Behalf Of Phil Corwin
Sent: Sunday, October 19, 2014 2:25 PM
To: gnso-igo-ingo-crp@icann.org
Subject: [Gnso-igo-ingo-crp] GAC LA Communique on IGO-INGO Curative Rights WG
Importance: High
WG members:
On October 16th the GAC issued a Communique that is available at
https://gacweb.icann.org/download/attachments/27132037/Los%20Angeles_GAC%20Communique_Final.pdf?version=1&modificationDate=1413479079702&api=v2
On pp.6-7 of the Communique the following language relevant to the task of our WG appears:
3.
Protection
of
Inter-‐Governmental
Organisation
(IGO) Names
and Acronyms
a.
The
GAC reaffirms
its advice
from the
Toronto, Beijing,
Durban, Buenos Aires,
Singapore and
London Communiqués
regarding protection
of IGO names
and acronyms
at the
top
and second
levels, as
implementation of
such protection
is in
the public
interest given
that IGOs,
as created
by governments
under international
law, are
objectively different
right holders;
namely,
i.
Concerning
preventative protection
at the
second level,
the GAC reminds
the ICANN
Board that
notice of
a match
to an
IGO name or
acronym to
prospective registrants,
as well
as to
the concerned
IGO,
should apply
in perpetuity
for the
concerned name
and acronym
in two
languages, and
at no
cost to
IGOs;
ii.
Concerning
curative protection
at the
second level,
and noting
the ongoing GNSO
PDP on
access to
curative Rights
Protection Mechanisms, the
GAC reminds
the ICANN
Board that
any such mechanism
should be
at no
or nominal
cost to
IGOs; and
further, in
implementing any
such curative
mechanism,
b.
The
GAC advises
the ICANN
Board:
i.
That
the UDRP
should not
be amended;
welcomes
the NGPC's
continued assurance
that interim
protections remain
in place pending
the resolution
of discussions
concerning preventative
protection of
IGO
names and
acronyms; and
supports
continued dialogue
between the
GAC (including
IGOs), the
ICANN Board (NGPC)
and the
GNSO to
develop concrete
solutions to
implement long-‐standing GAC
advice. (Emphasis added)
4.
Protection
of Red
Cross/Red Crescent
Names
The GAC
welcomes the
decision of
the New
gTLD Program
Committee (Resolution 2014.10.12.NG05)
to provide
temporary protections
for the
names of
the International Committee
of the
Red Cross
and International
Federation
of Red
Cross and
Red Crescent
Societies, and
the 189
National Red
Cross and
Red Crescent
Societies. The
GAC requests
the ICANN Board
and all
relevant parties
to work
quickly to
resolve the
longer term
issues still outstanding.
In regard to the highlighted portions of the communique, the GAC makes clear that it wants any new curative RPM to be available to IGOs at “no or nominal cost”. This leaves open the question, should
our WG choose to recommend the creation of a new DRP, of whether the current costs of the URS and UDRP are viewed as falling within the “nominal” range – and, if deemed by the GAC to exceed such range, what party should assume the financial cost of subsidizing
access to any new DRP by IGOs.
In regard to the GAC’s statement that “the UDRP should not be amended”, in my personal opinion this appears to be an overreaching attempt to foreclose the possibility that this WG will determine
that the UDRP should in fact be amended to better accommodate the legitimate rights of IGOs, and that a new curative rights process is not advisable, and as such should be rejected at this time -- as it would only leave the option of creating a new curative
RPM. ICANN and the GNSO have responded to the GAC’s concerns in regard to IGOs by establishing this WG, but we should be free to pursue its work as its members deem best without intervening attempts by the GAC to direct us to a predetermined outcome.
Such intervention is manifestly different from the type of participation that would be welcome from IGOs and GAC members, which is contributing to our factual database and interaction in our ongoing
and open dialogue. In this regard, when the Board met with the GNSO Council in Sunday, October 12th the activities of this WG were highlighted and there was dialogue concerning the intervention of Board members to encourage GAC and IGO participation.
The transcript of that session is not yet available at
http://la51.icann.org/en/schedule/sun-gnso-working and I would therefore solicit the assistance of ICANN staff in securing it so that we can review that discussion and follow up on it.
In conclusion, it would be useful to have feedback from WG members in regard to the relevant portions of the GAC Communique and in particular as to whether we should prepare any reply in regard to
its substance as well as to solicit the participation of IGOs and GAC members in our work.
Thanks and best regards,
Philip Corwin, Co-Chair
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
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