Dear Thomas,
Dear members of the reconvened WG group,

(1) I am not sure the agreement was that we would submit a renewed outline of the legal protections of the designations (words, names). We may refer you to our full report submitted to the Board in 2013 and which was circulated to the Group recently.

We are also attaching a new brief outlining the provisions included in a chosen list of national laws confirming

i)        the right/entitlement of the National Red Cross or Red Crescent Society in the given country to make use of the designations (words, names);
ii)        the protections accorded to the designations (words, names) under domestic law and the penal sanctions applicable to misuse thereof.



Our records suggest that national legislation on the use and the protection of the Red Cross and Red Crescent designations (words, names) exist in over 120 national jurisdictions.

As rightfully noted by Chris in his message, in many countries (so-called monist jurisdictions), international treaties such as the 1949 Geneva Conventions and their Additional Protocols of 1977 and 2005 are directly applicable in the domestic legal order of States parties, and thus, without the requirement, in principle, of national implementing legislation.

(2) We appreciate that tomorrow’s reconvened working group session is the last discussion prior to the GNSO’s closed session, but wish to recommend that those lawyers within the GNSO Council take a closer look at the documents submitted.

This should ensure an informed decision that is in line with the international legal protections accorded to the designations (words, names) and with the internationally defined uses of the same (including by the national and international components of the International Red Cross and Red Crescent Movement for the purpose of identification).

(3) As suggested at the end of the last call, we take this opportunity to lay out once more in writing a summary of the main points of the case for extending the current protections/reservations to the identifiers of the respective National Red Cross and Red Crescent Societies and for recommending that these protections be made permanent.

We appreciate that this has been submitted many times before and please understand that we are not in a position to add new legal grounds to what should constitute an already solid case.

The legal case

1)        The designations (words, names) “Red Cross”, “Red Crescent”, “Red Lion and Sun” are protected under the 1949 Geneva Conventions and their Additional Protocols of 1977. The designation (words, name) “Red Crystal” is on its part protected under the combined provisions of the 2005 Third Additional Protocol to the Geneva Conventions and Resolution 1 unanimously by the 29th International Conference of the Red Cross and Red Crescent in 2005 (and therefore by all States parties to the Geneva Conventions as members of the International Conference).

States have an international obligation under these international treaties to ensure the protection of these designations (words, names) and to adopt, if their legislation is not already adequate, measures necessary for the repression, at all times, of abuses of the designations (words, names).

There are 196 Parties to the 1949 Geneva Conventions and the list thereof may be accessed on the website of the Swiss Federal Department of Foreign Affairs – as it is the Swiss Federal Council which exercises the function of Depository of these international treaties.
 
2)        There are two recognized uses of the distinctive emblems and of their designations (words, names): one is “protective use” in times of armed conflict, the other is “indicative use” to indicate a link with the International Movement of the Red Cross and Red Crescent and its respective components (the 190 recognized National Red Cross and Red Crescent Societies, the ICRC and the IFRC). The use by Red Cross or Red Crescent Societies is stipulated under Article 44 para. 1 to 3 of the first Geneva Convention of 1949.

The Red Cross and Red Crescent organizations are hence recognized under international law (and the domestic legislation in force in a majority of countries) the legal right to make use of the designations (words, names). This is alternatively provided for under different types of national legislation (in a national legislation on the use and protection of the Red Cross and Red Crescent emblems, in a national legislation on the recognition/status of a National Society in the domestic legal order, etc.).

National Red Cross and Red Crescent Societies have an express duty under the Statutes of the International Red Cross and Red Crescent Movement to make use of one of the names (and distinctive emblems) in conformity with the Geneva Conventions and their Additional Protocols. This constitutes one of 10 Conditions for recognition of National Societies as a component of the Movement (Article 4 of the Statutes of the Movement). It is furthermore confirmed in the agreed practice of the Movement that, when used for indicative (identification) purposes as part of a National Society’s official name, the words require to be accompanied by an adjective indicating national affiliation (“British Red Cross Society”, “Croix-Rouge canadienne”, etc.).
   
3)        In legal terms, the designations (words, names) require to be protected from misuse at all times. This implies that they be protected from misuse

-        in both their authorized uses and displays (including when used as part of the name of one of the Red Cross or Red Crescent organizations, including the National Societies);
-        whether displayed on their own or when used together with other words or designs. The protections would be meaningful if they did not extend to the use of the designations when used or displayed in combination with other words.

Absent the possibility of a string similarity review mechanism as we are explained, and with a view to ensuring an effective protection of the designations in their indicative function, there is no other way but to extend the protections and reservations of the designations (words, names) in the domain name system to the names and identifiers of the respective Red Cross and Red Crescent organizations.

The public policy case

Besides the legal case outlined above and which should of itself ground the global public policy considerations for the protections, we have also in the past highlighted a range of additional considerations for the extension of the reservations to the full names of the Red Cross and Red Crescent organisations, in particular the National Red Cross and Red Crescent Societies.

These include in particular to:

-        the distinct roles and mandates recognized to a National Society under international law and under domestic laws – thus including, the distinct and privileged status and responsibilities of National Societies as an auxiliary to the public authorities in the humanitarian field in their own country;
-        the particular risks of fraudulent use of the names and identifiers of National Societies (and of the Movement as a whole) which may occur, particularly in the event of a humanitarian emergency.  

We are attaching once again the intervention by Charlotte Lindsey, ICRC’s Director of Communication and Information Management, to the GNSO Council as presented on 14th April 2016, which provided elements to this question.



Until tomorrow. With best regards,

Stéphane


Stéphane J. Hankins
Legal adviser
Cooperation and coordination within the Movement
International Committee of the Red Cross
Tel (direct line): ++0041 22 730 24 19

-----Original Message-----
From: Thomas Rickert [mailto:thomas@rickert.net]
Sent: Tuesday, September 05, 2017 12:37 PM
To: Mary Wong <mary.wong@icann.org>
Cc: Thomas Rickert <thomas@rickert.net>; Chuck <consult@cgomes.com>; christopher.lamb17@gmail.com; Jorge.Cancio@bakom.admin.ch; Greg Shatan <gregshatanipc@gmail.com>; gnso-igo-ingo@icann.org
Subject: IMPORTANT: Are there more questions?

Dear all,
Thanks for this vivid exchange of e-mails.

As we prepare for the upcoming call it would be great to understand whether there are open questions with respect to the legal basis for protections.

If so, please send them to the list prior to the call so we can hopefully get answers for everyone’s consideration before or during the call.

If there are no questions on the list, we have to assume there are none and that we can proceed to a mini consensus call on the aspect of the legal basis for protections.
If there are questions, we hope to get them answered and move to the mini consensus call.

An agenda for the call will be circulated shortly.

Best,
Thomas

> Am 04.09.2017 um 01:18 schrieb Mary Wong <mary.wong@icann.org>:
>
> Dear Chuck and everyone,
>
> In addition to the information from Christopher, we understand that the Red Cross representatives may be preparing an updated list of the protections that the Red Cross names currently under discussion may be entitled to under various national laws. In the meantime, Working Group members may find helpful the initial research that ICANN Legal performed, as part of the work of the original PDP Working Group, relating to the protection of the terms associated with the Red Cross, International Olympic Committee and IGOs: see Annex 5 of the Final Report - https://gnso.icann.org/en/issues/igo-ingo-final-10nov13-en.pdf (please note that the research was limited to answering a specific question that was posed at the time by the Working Group, as reflected in the introductory text to this Annex).
>
> Working Group members may also find helpful the current, interim list of reserved names of the Red Cross National Societies: https://www.icann.org/sites/default/files/packages/reserved-names/ReservedNames.xml#red-cross-international. Please note that, as part of the current scope of work for this group, the GNSO Council has expressly requested that the group consider the specific names of the 190 Red Cross National Societies as well as a specific, limited set of variants of those names. As you may recall, the Red Cross representatives have kindly offered to work with ICANN and the Working Group to develop and agree on the final list of names and variants, if and when appropriate.
>
> Thanks and cheers
> Mary

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