Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.co m/store/product/protection-of-geographic-names-in-internatio nal-law-and-domain-name-system-second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. *1. The critical difference between domestic and international law, and why it matters* Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "*Domain names are unique, and global resources". *This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. *2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application* This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your *opinion*'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no *explicit* recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is *implicitly* recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law *should or could *be. *3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN* In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. *4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law* A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. *5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.* Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member
Dear Heather, dear all, As you mention Swiss law please allow me to answer some of your points. At a legal level without entering into a lawyerly debate or an academic discussion (which are not pertinent here), I guess that you will agree that an application/delegation for a TLD with a Swiss geoname (“Switzerland” or “Luzern”) would have effects in Switzerland, as the DNS is global and borderless. And, as you may agree, the brunt of the effects of such a delegation would be felt very prominently where the corresponding geographic entity is located. Hence article 29 ZGB would be applicable in such cases concerning Swiss geonames. That would probably mean a protracted process between the applicant and the relevant public authorities. This same problem could happen in the many jurisdictions where geonames are protected in some way or another by national laws (we have seen onlist examples from bigger countries like Germany and France, but there are more for sure…). The fact that country name protection has eg been the subject of WIPO recommendations far back in 2003 and is debated there is IMO a sign that there is international law “in the making”, and even if it were not so, it shows that many countries have national protections in place and are looking for ways to agree on common international standards. It would be at least be quite unwise to try to preempt such discussions by imposing a “laisser faire” approach on geonames as TLDs (see below). It is also a key flaw in your approach that it factually ignores that ICANN is obliged to act in conformity with applicable national law pursuant to its Bylaws. Not doing this in a wise and anticipatory manner is only a recipe for problems (as we have seen and are seeing in other remits of ICANNs action). ICANN acts in many parts of the world and would for sure be subject to litigation in such places if applicable national laws were to be ignored. At a policy level, I understand that your approach would be neither productive for the applicant nor for the public authorities involved, as it would be the cause for potential fragmentation, multiple conflicts, not be predictable nor would be getting all the interests to a table in a fashion conducive to mutually agreed solutions before an application goes forward. Furthermore, your “model” imposes one solution on the many jurisdictions which protect their geonames, i.e. a “laissez faire” approach due to the lack of a requirement of prior information and non-objection by the relevant public authority. In contrast, the “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. In this sense, the “letter of non-objection” allows, as said many times on list, for different national/local approaches (which will be informed by national/local policy): from complete laissez-faire to common solutions, including participation in the governance, setting o rules, etc. I hope that in our further efforts we may acknowledge the different interests and rights involved, look for possible shortcomings in the implementation of the “non-objection letter” model during the 2012 AGB, and strive for solutions that truly take all interests into account and are consistent with the commitment by ICANN to act in conformity not only with shared principles of international law, but also with applicable local law. Best regards Jorge Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Heather Forrest Gesendet: Donnerstag, 17. Mai 2018 08:08 An: gnso-newgtld-wg-wt5@icann.org Betreff: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member
Dear Heather,I would like to re-iterate the facts again with some queries.2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD applicationAs per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country?I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. National Laws International Laws ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: The IANA (ICANN) is not in the business of deciding what is and what is not a country. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of City Names Names with Geo-graphic Significance Names which were not included in the AGB 2012Thanks,Harish Chowdhary,Technology Analyst,National Internet Exchange of IndiaISOC FELLOW | inSIG FELLOWIIREF FELLOW | UASG AMBASSADORwww.nixi.in | www.indiaig.in | registry.inFrom: Heather Forrest <haforrestesq@gmail.com>Sent: Thu, 17 May 2018 11:38:39 GMT+0530To: gnso-newgtld-wg-wt5@icann.orgSubject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. E ven apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Conventi on for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or e volve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but wit hout the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________Gnso-newgtld-wg-wt5 mailing listGnso-newgtld-wg-wt5@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. Any unauthorized review, use, disclosure, dissemination, forwarding, printing or copying of this email is strictly prohibited and appropriate legal action will be taken. -------------------------------------------------------------------------------------------------
Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. · To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) · The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. · At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of · City Names · Names with Geo-graphic Significance · Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in> | www.indiaig.in<http://www.indiaig.in> | registry.in<http://registry.in> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5<file://prolinks.rediffmailpro.com/cgi-bin/prored.cgi%3fred=https%253A%252F%252Fmm%252Eicann%252Eorg%252Fmailman%252Flistinfo%252Fgnso%252Dnewgtld%252Dwg%252Dwt5&rediffng=0> ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. Any unauthorized review, use, disclosure, dissemination, forwarding, printing or copying of this email is strictly prohibited and appropriate legal action will be taken. -------------------------------------------------------------------------------------------------
+1 Nick Best, Rosalía [cid:B190111C-4AAD-456E-809F-8934B6CA8935] On May 17, 2018, at 10:54 AM, Nick Wenban-Smith <Nick.Wenban-Smith@nominet.uk<mailto:Nick.Wenban-Smith@nominet.uk>> wrote: Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it!https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5<file://prolinks.rediffmailpro.com/cgi-bin/prored.cgi%3fred=https%253A%252F%252Fmm%252Eicann%252Eorg%252Fmailman%252Flistinfo%252Fgnso%252Dnewgtld%252Dwg%252Dwt5&rediffng=0> ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. 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+1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. · To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) · The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. · At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of · City Names · Names with Geo-graphic Significance · Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in> | www.indiaig.in<http://www.indiaig.in> | registry.in<http://registry.in> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5<file://prolinks.rediffmailpro.com/cgi-bin/prored.cgi%3fred=https%253A%252F%252Fmm%252Eicann%252Eorg%252Fmailman%252Flistinfo%252Fgnso%252Dnewgtld%252Dwg%252Dwt5&rediffng=0> ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. 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Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com> wrote:
+1 Nick
BG Katrin
DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting www.dotzon.consulting
DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin
*Von:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *Im Auftrag von *Nick Wenban-Smith *Gesendet:* Donnerstag, 17. Mai 2018 18:55 *An:* harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Betreff:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes
Nick
*From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> *On Behalf Of *Harish Chowdhary *Sent:* 17 May 2018 09:14 *To:* Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
- Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful *as per International Laws?*
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.*
- Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country?
I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
- National Laws - International Laws - ICANN By-laws
It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles:
1. The IANA (ICANN) is not in the business of deciding what is and what is not a country.
2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist.
· To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs)
· The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid.
· At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity.
Based upon the above facts we may again involve the* ISO at United Nations* (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of
· City Names
· Names with Geo-graphic Significance
· Names which were not included in the AGB 2012
*Thanks,*
* Harish Chowdhary, Technology Analyst, National Internet Exchange of India* *ISOC FELLOW | inSIG FELLOW* * IIREF FELLOW | UASG AMBASSADOR* www.nixi.in | www.indiaig.in | registry.in
From: Heather Forrest <haforrestesq@gmail.com> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published ( https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
*1. The critical difference between domestic and international law, and why it matters*
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "*Domain names are unique, and global resources". *This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your *opinion*'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no *explicit* recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is *implicitly* recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law *should or could *be.
*3. Why we should not ignore i**nternational law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN*
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law*
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
*5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.*
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest
WT5 member
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Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch> wrote:
Dear colleagues,
I think that we are insisting on a dead-end row, when we discuss about the
„intended use“. This concept does not help when we are talking about a unique resource.
If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC
How such a concept of the “intended use” would have helped ?
I cannot figure out at all.
We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs.
I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored.
I remember here what he said few days ago:
- “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? - I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.”
ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
*From:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *On Behalf Of *Liz Williams *Sent:* vendredi 18 mai 2018 10:06 *To:* Greg Shatan <gregshatanipc@gmail.com>
*Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au www.auda.org.au
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com> wrote:
+1 Nick
BG Katrin
DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting www.dotzon.consulting
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*Von:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *Im Auftrag von *Nick Wenban-Smith *Gesendet:* Donnerstag, 17. Mai 2018 18:55 *An:* harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Betreff:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes
Nick
*From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> *On Behalf Of *Harish Chowdhary *Sent:* 17 May 2018 09:14 *To:* Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
- Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful *as per International Laws?*
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.*
- Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country?
I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
- National Laws - International Laws - ICANN By-laws
It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles:
1. The IANA (ICANN) is not in the business of deciding what is and what is not a country.
2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist.
· To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs)
· The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid.
· At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity.
Based upon the above facts we may again involve the* ISO at United Nations* (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of
· City Names
· Names with Geo-graphic Significance
· Names which were not included in the AGB 2012
*Thanks,* *Harish Chowdhary,* *Technology Analyst,* *National Internet Exchange of India* *ISOC FELLOW | inSIG FELLOW* *IIREF FELLOW | UASG AMBASSADOR* www.nixi.in | www.indiaig.in | registry.in
From: Heather Forrest <haforrestesq@gmail.com> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer. com/store/product/protection-of-geographic-names-in- international-law-and-domain-name-system-second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
*1. The critical difference between domestic and international law, and why it matters*
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "*Domain names are unique, and global resources". *This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your *opinion*'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no *explicit* recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is *implicitly* recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law *should or could *be.
*3. Why we should not ignore i**nternational law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN*
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law*
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
*5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.*
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest
WT5 member
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I don’t want to spoil Jeff Neuman of his prerogatives. He raised this concept here first… I am supporting this concepts since long time in Europe. But here he was first, so I leave him to reply. Giacomo From: Maureen Hilyard [mailto:maureen.hilyard@gmail.com] Sent: vendredi 18 mai 2018 11:59 To: Mazzone, Giacomo <mazzone@ebu.ch> Cc: Liz Williams <liz.williams@auda.org.au>; Greg Shatan <gregshatanipc@gmail.com>; Jorge Cancio (Jorge.Cancio@bakom.admin.ch) <Jorge.Cancio@bakom.admin.ch>; gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch> wrote: Dear colleagues,
I think that we are insisting on a dead-end row, when we discuss about the
„intended use“. This concept does not help when we are talking about a unique resource.
If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC
How such a concept of the “intended use” would have helped ?
I cannot figure out at all.
We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs.
I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored.
I remember here what he said few days ago:
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com>
Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au www.auda.org.au
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com> wrote:
+1 Nick
BG Katrin
DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting www.dotzon.consulting
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes
Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
National Laws International Laws ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles:
1. The IANA (ICANN) is not in the business of deciding what is and what is not a country.
2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist.
· To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs)
· The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid.
· At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity.
Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of
· City Names
· Names with Geo-graphic Significance
· Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in | www.indiaig.in | registry.in
From: Heather Forrest <haforrestesq@gmail.com> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest
WT5 member
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Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that *each party* will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com> wrote:
Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch> wrote:
Dear colleagues,
I think that we are insisting on a dead-end row, when we discuss about the
„intended use“. This concept does not help when we are talking about a unique resource.
If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC
How such a concept of the “intended use” would have helped ?
I cannot figure out at all.
We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs.
I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored.
I remember here what he said few days ago:
- “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? - I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.”
ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
*From:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *On Behalf Of *Liz Williams *Sent:* vendredi 18 mai 2018 10:06 *To:* Greg Shatan <gregshatanipc@gmail.com>
*Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au www.auda.org.au
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com> wrote:
+1 Nick
BG Katrin
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*Von:* Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *Im Auftrag von *Nick Wenban-Smith *Gesendet:* Donnerstag, 17. Mai 2018 18:55 *An:* harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Betreff:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes
Nick
*From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> *On Behalf Of *Harish Chowdhary *Sent:* 17 May 2018 09:14 *To:* Heather Forrest <haforrestesq@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
- Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful *as per International Laws?*
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.*
- Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country?
I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
- National Laws - International Laws - ICANN By-laws
It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles:
1. The IANA (ICANN) is not in the business of deciding what is and what is not a country.
2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist.
· To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs)
· The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid.
· At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity.
Based upon the above facts we may again involve the* ISO at United Nations* (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of
· City Names
· Names with Geo-graphic Significance
· Names which were not included in the AGB 2012
*Thanks,* *Harish Chowdhary,* *Technology Analyst,* *National Internet Exchange of India* *ISOC FELLOW | inSIG FELLOW* *IIREF FELLOW | UASG AMBASSADOR* www.nixi.in | www.indiaig.in | registry.in
From: Heather Forrest <haforrestesq@gmail.com> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.co m/store/product/protection-of-geographic-names-in-internatio nal-law-and-domain-name-system-second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
*1. The critical difference between domestic and international law, and why it matters*
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "*Domain names are unique, and global resources". *This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
*2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application*
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your *opinion*'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no *explicit* recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is *implicitly* recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law *should or could *be.
*3. Why we should not ignore i**nternational law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN*
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
*4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law*
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
*5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.*
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest
WT5 member
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Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch> wrote: Dear colleagues,
I think that we are insisting on a dead-end row, when we discuss about the
„intended use“. This concept does not help when we are talking about a unique resource.
If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC
How such a concept of the “intended use” would have helped ?
I cannot figure out at all.
We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs.
I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored.
I remember here what he said few days ago:
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com>
Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au www.auda.org.au
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com> wrote:
+1 Nick
BG Katrin
DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting www.dotzon.consulting
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in; Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes
Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
National Laws International Laws ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles:
1. The IANA (ICANN) is not in the business of deciding what is and what is not a country.
2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist.
· To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs)
· The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid.
· At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity.
Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of
· City Names
· Names with Geo-graphic Significance
· Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in | www.indiaig.in | registry.in
From: Heather Forrest <haforrestesq@gmail.com> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest
WT5 member
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Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutsc...> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&sourc...> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutsc...> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&sourc...> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Mazzone, Giacomo <mazzone@ebu.ch> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch; javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutsc...> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/<http://www.dotzon.consulting<http://www.dotzon.consulting/>> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&sourc...> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com> wrote:
Hi all,
Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city.
In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it.
This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago.
Best,
Yrjö
------------------------------ *From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Mazzone, Giacomo <mazzone@ebu.ch> *Sent:* Friday, May 18, 2018 3:06 PM *To:* Jorge.Cancio@bakom.admin.ch; javrua@gmail.com; maureen.hilyard@gmail.com *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Of course. This make sense.
Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge
________________________________
Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Very very interesting , Maureen. Thank you.
I encourage other WT members to comment on this very specific idea.
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn <https://www.linkedin.com/in/javrua> www.linkedin.com View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies.
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com< mailto:maureen.hilyard@gmail.com>> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto: javrua@gmail.com>> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com< mailto:maureen.hilyard@gmail.com>> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto: mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago:
* “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5- bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au>
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick
BG Katrin
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5- bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in <harish@nixi.in>>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto: gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
* Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
* Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
* National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/>
From: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer. com/store/product/protection-of-geographic-names-in- international-law-and-domain-name-system-second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
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Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com
wrote:
Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties.
On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro < yrjo_lansipuro@hotmail.com> wrote:
Hi all,
Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city.
In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it.
This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago.
Best,
Yrjö
------------------------------ *From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Mazzone, Giacomo <mazzone@ebu.ch> *Sent:* Friday, May 18, 2018 3:06 PM *To:* Jorge.Cancio@bakom.admin.ch; javrua@gmail.com; maureen.hilyard@gmail.com *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Of course. This make sense.
Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge
________________________________
Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Very very interesting , Maureen. Thank you.
I encourage other WT members to comment on this very specific idea.
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn <https://www.linkedin.com/in/javrua> www.linkedin.com View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies.
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto: javrua@gmail.com>> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago:
* “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au>
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick
BG Katrin
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in <harish@nixi.in>>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto: gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
* Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
* Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
* National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/>
From: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.co m/store/product/protection-of-geographic-names-in-internatio nal-law-and-domain-name-system-second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
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Just one detail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au><http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in><http://www.indiaig.in/> | registry.in<http://registry.in><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. 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Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) *GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). *According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. *If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection.* *.Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. *It's not clear that an intended use concept would have mattered here. However it's fair to say that* if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided.* *.Spa: There were 3 applications, none of which had a geographic intended use. *One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. *If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation.* *.Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded.* Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. *.Patagonia: **Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. *In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch> wrote:
Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo
*De: *Greg Shatan *Envoyé: *samedi, 19 mai 2018 07:43 *À: *Maureen Hilyard *Cc: *gnso-newgtld-wg-wt5@icann.org *Objet: *Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"?
Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties.
It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others.
For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion.
Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy.
Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England.
In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.).
It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests.
A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition.
Best regards,
Greg
On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard < maureen.hilyard@gmail.com> wrote:
Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties.
On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro < yrjo_lansipuro@hotmail.com> wrote:
Hi all,
Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city.
In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it.
This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago.
Best,
Yrjö
------------------------------ *From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Mazzone, Giacomo <mazzone@ebu.ch> *Sent:* Friday, May 18, 2018 3:06 PM *To:* Jorge.Cancio@bakom.admin.ch; javrua@gmail.com; maureen.hilyard@gmail.com *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Of course. This make sense.
Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge
________________________________
Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Very very interesting , Maureen. Thank you.
I encourage other WT members to comment on this very specific idea.
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn <https://www.linkedin.com/in/javrua> www.linkedin.com View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies.
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto: javrua@gmail.com>> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago:
* “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au>
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com>> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick
BG Katrin
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in <harish@nixi.in>>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto: gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
* Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
* Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
* National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/>
From: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published ( https://lrus.wolterskluwer.com/store/product/protection-of- geographic-names-in-international-law-and-domain-name-system -second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
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Dear Greg, I think we are dancing around a concept but everyone taking a different conclusion from the same facts. Which are the most important lessons learned from me from these 5 cases and which mistakes could be avoided in the future ? . 1) Africa/GCC The fact to leave out the Continents name and subregion names out of the geonames prerogatives had as consequence that was not clear to ICANN who was the competent body to ask for the letter. My wish is that next time we could be more clear and so ICANN cannot repeat the same mistakes. 2) Patagonia/Amazon: Same problem for the name of regions. Rules didn't made clear that also regions are geonames and so that have to benefit of the same protections of cities and country, and so we had these problems. If next time we shall be clearer, saying that a letter of non-objection is needed anyway, probably a solution could be found. What doesn't incentive both parties to find a solution, is that both parties are convinced to be right: one based on brand preference and the other one based on geo names protection. Here it is the case where a shared use solution, if possible, would be a perfect example of the shared economy that Internet is supposed to be for; 3) Spa Is the more complicate case to solve, because you have a community prerogative (the Spa's centers around the world) against geonames prerogative. Again here a shared use would have made more sense. Because we are trying to be future proof, imagine if the city of Spa in Belgium would have applied instead than make an objection to other applicants. According to the rules for geo names they would have been prioritized and ICANN would be in an impasse: geo names vs community. Both cases eligible for special protection and consideration. My question (and I think the question to which our group needs to answer) is what we could recommend to ICANN for the future processes to avoid the repeat of cases like these. Here again a shared use (if possible) would have been the most recommendable. Coming back to the "intended use" (that applies only to Amazon and Patagonia), I don't see how the application of this concept would have solved the problem. Unless you are proposing to solve the problem giving a priori predominance to brands on geonames, or to the first applicant over the following ones. These solutions ,from a European cultural, legislative and jurisprudential view point, are all unacceptable. If somebody owns a right, this right (to his name) belongs to him and only him could decide to renounce to its use. The „intended use“ concepts is not helpful because we are talking about a unique resource. And as said by many participants to this group, the intended use creates insurmountable problems in terms of monitoring and enforcement of third party behavior (eg registrants that use the string with a geo-meaning) - even if the intended use is non-geographic the name would be delegated away, circumventing the interests and rights of the relevant city. Hence it is key to have the public authority on board beforehand. This ensures that all interests are considered and respected. - the non-objection letter worked well for all cases where it was required that you mention. - the examples of spa/amazon/patagonia/gcc show actually prima facie that NOT being clearly subject to the non-objection letter is what creates problems, as the relevant public authorities are not involved in early stages of the process. If the non-objection-letter requirement had been clearly there for those cases, applicants and relevant public authorities would have had a chance of working out mutually accepted solutions. In addition, the „non-intended“ use exception creates incentives for applicants to game the system and not to look for compromise or shared solutions.. - Hence, these cases show the need to eliminate any ambiguities and get rid of the „intended use“ exception for city names, and to establish a better framework based on the non-objection requirement for those geonames (as amazon/patagonia/gcc) that were not covered by the AGB non-objection letter requirement. This is what I meant. I hope it's now clearer why I say that "intended use" is a dead-end-row if we are looking for a consensual solution. That is what we are supposed to look for in our group. Giacomo From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: mercredi 23 mai 2018 07:06 To: Mazzone, Giacomo <mazzone@ebu.ch> Cc: Maureen Hilyard <maureen.hilyard@gmail.com>; gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au><http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/<http://www.dotzon.consulting%3chttp:/www.dotzon.consulting/>> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in><http://www.indiaig.in/> | registry.in<http://registry.in><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org><mailto:Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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Giacomo: I believe it is incorrect to state that had the Town of Spa, Belgium applied for .SPA, it would not have been prioritized over the community or the generic applications. What makes you think that a geo application would have been prioritized? The same geographic rules applied regardless of whether the Town applied or not. If a letter of non-objection was not required when the town didn't apply, there would be no preferential benefit had it applied because of the "intended use" provision. The intended use provision actually worked in the case of .SPA . . . at least in my opinion. I just want to be sure that we all have consistent facts. Also, how would a forced shared model have worked in the case of .SPA in your opinion? It's an interesting idea, but I don't think very workable, but open to be convinced otherwise. Thanks. Jon
On May 23, 2018, at 6:08 AM, Mazzone, Giacomo <mazzone@ebu.ch> wrote:
Dear Greg,
I think we are dancing around a concept but everyone taking a different conclusion from the same facts. Which are the most important lessons learned from me from these 5 cases and which mistakes could be avoided in the future ? .
1) Africa/GCC The fact to leave out the Continents name and subregion names out of the geonames prerogatives had as consequence that was not clear to ICANN who was the competent body to ask for the letter. My wish is that next time we could be more clear and so ICANN cannot repeat the same mistakes. 2) Patagonia/Amazon: Same problem for the name of regions. Rules didn't made clear that also regions are geonames and so that have to benefit of the same protections of cities and country, and so we had these problems. If next time we shall be clearer, saying that a letter of non-objection is needed anyway, probably a solution could be found. What doesn't incentive both parties to find a solution, is that both parties are convinced to be right: one based on brand preference and the other one based on geo names protection. Here it is the case where a shared use solution, if possible, would be a perfect example of the shared economy that Internet is supposed to be for; 3) Spa Is the more complicate case to solve, because you have a community prerogative (the Spa's centers around the world) against geonames prerogative. Again here a shared use would have made more sense. Because we are trying to be future proof, imagine if the city of Spa in Belgium would have applied instead than make an objection to other applicants. According to the rules for geo names they would have been prioritized and ICANN would be in an impasse: geo names vs community. Both cases eligible for special protection and consideration. My question (and I think the question to which our group needs to answer) is what we could recommend to ICANN for the future processes to avoid the repeat of cases like these. Here again a shared use (if possible) would have been the most recommendable.
Coming back to the "intended use" (that applies only to Amazon and Patagonia), I don't see how the application of this concept would have solved the problem. Unless you are proposing to solve the problem giving a priori predominance to brands on geonames, or to the first applicant over the following ones. These solutions ,from a European cultural, legislative and jurisprudential view point, are all unacceptable. If somebody owns a right, this right (to his name) belongs to him and only him could decide to renounce to its use. The „intended use“ concepts is not helpful because we are talking about a unique resource. And as said by many participants to this group, the intended use creates insurmountable problems in terms of monitoring and enforcement of third party behavior (eg registrants that use the string with a geo-meaning)
- even if the intended use is non-geographic the name would be delegated away, circumventing the interests and rights of the relevant city. Hence it is key to have the public authority on board beforehand. This ensures that all interests are considered and respected.
- the non-objection letter worked well for all cases where it was required that you mention.
- the examples of spa/amazon/patagonia/gcc show actually prima facie that NOT being clearly subject to the non-objection letter is what creates problems, as the relevant public authorities are not involved in early stages of the process. If the non-objection-letter requirement had been clearly there for those cases, applicants and relevant public authorities would have had a chance of working out mutually accepted solutions. In addition, the „non-intended“ use exception creates incentives for applicants to game the system and not to look for compromise or shared solutions..
- Hence, these cases show the need to eliminate any ambiguities and get rid of the „intended use“ exception for city names, and to establish a better framework based on the non-objection requirement for those geonames (as amazon/patagonia/gcc) that were not covered by the AGB non-objection letter requirement.
This is what I meant. I hope it's now clearer why I say that "intended use" is a dead-end-row if we are looking for a consensual solution. That is what we are supposed to look for in our group.
Giacomo
From: Greg Shatan [mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>] Sent: mercredi 23 mai 2018 07:06 To: Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> Cc: Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>>; gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Giacomo,
Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying.
While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond.
You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)"
You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.)
GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection.
.Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided.
.Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation.
.Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.
.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications.
In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems."
Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof."
Best regards,
Greg
On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo
De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"?
Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties.
It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others.
For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion.
Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy.
Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England.
In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.).
It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests.
A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition.
Best regards,
Greg
On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties.
On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com <mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all,
Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city.
In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it.
This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago.
Best,
Yrjö
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com <mailto:javrua@gmail.com>; maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Of course. This make sense.
Message d'origine De: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com <mailto:javrua@gmail.com>; maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge
________________________________
Von: Javier Rua <javrua@gmail.com <mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Very very interesting , Maureen. Thank you.
I encourage other WT members to comment on this very specific idea.
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua> <https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn <https://www.linkedin.com/in/javrua> www.linkedin.com <http://www.linkedin.com/> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies.
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>>> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com <mailto:javrua@gmail.com><mailto:javrua@gmail.com <mailto:javrua@gmail.com>>> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua>
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>>> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch <mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago:
* “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>
Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au <mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au <mailto:liz.williams@auda.org.au>>www.auda.org.au <http://www.auda.org.au/><http://www.auda.org.au <http://www.auda.org.au/>>
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com <mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com <mailto:ohlmer@dotzon.com>>> wrote: +1 Nick
BG Katrin
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in <mailto:harish@nixi.in><mailto:harish@nixi.in <mailto:harish@nixi.in>>; Heather Forrest <haforrestesq@gmail.com <mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com <mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom <https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom>
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com <mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com <mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
* Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
* Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
* National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in <http://www.nixi.in/><http://www.nixi.in/ <http://www.nixi.in/>> |www.indiaig.in <http://www.indiaig.in/><http://www.indiaig.in/ <http://www.indiaig.in/>> |registry.in <http://registry.in/><http://registry.in/ <http://registry.in/>>
From: Heather Forrest <haforrestesq@gmail.com <mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com <mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-... <https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...>) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
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Greg, about: *.Patagonia: **Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. *In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com>:
Giacomo,
Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying.
While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond.
You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)"
You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.)
*GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). *According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. *If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection.*
*.Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. *It's not clear that an intended use concept would have mattered here. However it's fair to say that* if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided.*
*.Spa: There were 3 applications, none of which had a geographic intended use. *One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. *If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation.*
*.Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded.* Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.
*.Patagonia: **Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. *In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications.
In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems."
Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof."
Best regards,
Greg
On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch> wrote:
Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo
*De: *Greg Shatan *Envoyé: *samedi, 19 mai 2018 07:43 *À: *Maureen Hilyard *Cc: *gnso-newgtld-wg-wt5@icann.org *Objet: *Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"?
Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties.
It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others.
For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion.
Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy.
Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England.
In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.).
It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests.
A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition.
Best regards,
Greg
On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard < maureen.hilyard@gmail.com> wrote:
Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties.
On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro < yrjo_lansipuro@hotmail.com> wrote:
Hi all,
Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city.
In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it.
This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago.
Best,
Yrjö
------------------------------ *From:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Mazzone, Giacomo <mazzone@ebu.ch> *Sent:* Friday, May 18, 2018 3:06 PM *To:* Jorge.Cancio@bakom.admin.ch; javrua@gmail.com; maureen.hilyard@gmail.com *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Of course. This make sense.
Message d'origine De: Jorge.Cancio@bakom.admin.ch Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com; maureen.hilyard@gmail.com Cc: gnso-newgtld-wg-wt5@icann.org Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge
________________________________
Von: Javier Rua <javrua@gmail.com> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Very very interesting , Maureen. Thank you.
I encourage other WT members to comment on this very specific idea.
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua <https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn <https://www.linkedin.com/in/javrua> www.linkedin.com View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies.
On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
Thank you Javier
I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment.
What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc.
But that's it (in a nutshell).
On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto: javrua@gmail.com>> wrote: Maureen,
Please do share that idea!
There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated!
Javier Rúa-Jovet ALAC
+1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com <mailto:maureen.hilyard@gmail.com>> wrote:
I think that core to Mazzone's argument for me, is :
“ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use?
I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here?
On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today)
- Amazon
- Patagonia
- Spa
- Africa
- GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago:
* “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here.
Giacomo
From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com
Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hello Greg
I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble.
Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application...
Further ideas most welcome.
Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au>
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On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailt o:gregshatanipc@gmail.com>> wrote:
Nick,
I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support.
One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.”
As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed).
However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule.
You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern.
The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available.
Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.”
This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”.
At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”).
Greg
On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH < ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick
BG Katrin
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Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bo unces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org <gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in <harish@nixi.in>>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Hi Heather, all
This is a very interesting point of discussion.
Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/ City_status_in_the_United_Kingdom
Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process!
Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest.
Best wishes Nick
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org <mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear Heather,
I would like to re-iterate the facts again with some queries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision.
* Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws?
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law.
* Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question.
Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue.
* National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012
Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indi aig.in/> | registry.in<http://registry.in/>
From: Heather Forrest <haforrestesq@gmail.com<mailto: haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published ( https://lrus.wolterskluwer.com/store/product/protection-of- geographic-names-in-international-law-and-domain-name-system -second-edition/) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
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Hello Olga I wonder if we could just explore this some more? If, as Greg has suggested, the applicant had wanted to use .patagonia as an expression of their brand and had no intention of using it as what we think of as a geographic identifier, then it would no surprise that the governments of Argentina and Chile who share the Patagonian region (https://en.wikipedia.org/wiki/Patagonia) were not consulted? Under the AGB rules, it was not a requirement for an applicant even if, in hindsight, it might have been a good idea. As we know, the Patagonian region is a splendid area with unique wildlife, tourism possibilities and is very attractive to all kinds of research and environmental activities. If one takes a look at the http://www.patagonia.com/home/ page one will see that the founders of the the company are committed environmentalists and, since May 2013, have made very significant investments in environmental causes, supply chain sustainability and special grants for good works. It seems to me we need to be very careful about making prohibitions for geographic labels when, even on the most superficial analysis, a .patagonia may have been a very good thing for both the applicant, the region and the people in the region. Blanket prohibitions or “preventions” are not a good idea without a really explicit understanding of what is being “protected", why and with what objective instruments. In this case, what if Argentina and Chile had opposing views? What would an applicant do if one supported and the other didn’t; one provided a letter of support; one a letter of non-objection; two letters of non-objection on different grounds? What would independent evaluators do in those circumstances? What if one government was voted out of office and, in the other country, a coup took place during the evaluation process? We also need to work much harder on understanding how legitimate objections can be made from any stakeholder, not just governments. Using the GAC as a proxy evaluator is not the way to do that, given the GAC’s very clear mandate and role. It might be better to flip this analysis on its head…could users of .patagonia been misled or confused by a .patagonia TLD? If so, that is addressable in consumer protection law? I look forward to hearing other’s views about whether we could also apply these questions to Greg’s other examples? Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 24 May 2018, at 9:04 am, Olga Cavalli <olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>> wrote: Greg, about: .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com/> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au/><http://www.auda.org.au<http://www.auda.org.au/>> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting><mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/><http://www.indiaig.in/> | registry.in<http://registry.in/><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org><mailto:Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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Dear all, .patagonia is an interesting and illustrative case on the borderline between geographic and non-geographic use. If the applicant is entirely devoid of any association to a geographic region known as Patagonia, why then does the company logo depict the skyline of Cerro Fitz Roy<https://en.wikipedia.org/wiki/Monte_Fitz_Roy> in Patagonia (https://en.wikipedia.org/wiki/Patagonia_(clothing))? The company clearly wants to be associated with the region and to leverage its rugged-attractive image, which seems to fit marvelously the marketing purposes of the ecology-minded manufacturers of outdoor clothing. This is entirely understandable, but I wonder where this falls between geographic and non-geographic use, and don't the people and government(s) of the region merit just even a "do you mind?" letter, if its name is proposed to be used as a unique, exclusive resource by someone? Best, Yrjö [https://upload.wikimedia.org/wikipedia/en/thumb/9/9b/Patagonia.svg/200px-Patagonia.svg.png]<https://en.wikipedia.org/wiki/Patagonia_(clothing)> Patagonia (clothing) - Wikipedia<https://en.wikipedia.org/wiki/Patagonia_(clothing)> en.wikipedia.org Coordinates. Patagonia, Inc. is an American clothing company that sells outdoor clothing marketed as sustainable.The company was founded by Yvon Chouinard in 1973, and is based in Ventura, California. ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Liz Williams <liz.williams@auda.org.au> Sent: Thursday, May 24, 2018 6:40 AM To: Olga Cavalli Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Olga I wonder if we could just explore this some more? If, as Greg has suggested, the applicant had wanted to use .patagonia as an expression of their brand and had no intention of using it as what we think of as a geographic identifier, then it would no surprise that the governments of Argentina and Chile who share the Patagonian region (https://en.wikipedia.org/wiki/Patagonia) were not consulted? Under the AGB rules, it was not a requirement for an applicant even if, in hindsight, it might have been a good idea. [https://upload.wikimedia.org/wikipedia/commons/thumb/c/c6/Patagonia_rg.png/1200px-Patagonia_rg.png]<https://en.wikipedia.org/wiki/Patagonia> Patagonia - Wikipedia<https://en.wikipedia.org/wiki/Patagonia> en.wikipedia.org Patagonia (Spanish pronunciation: [pataˈɣonja]) is a sparsely populated region located at the southern end of South America, shared by Argentina and Chile.The region comprises the southern section of the Andes mountains as well as the deserts, pampas and grasslands east of this southern portion of the Andes. As we know, the Patagonian region is a splendid area with unique wildlife, tourism possibilities and is very attractive to all kinds of research and environmental activities. If one takes a look at the http://www.patagonia.com/home/ page one will see that the founders of the the company are committed environmentalists and, since May 2013, have made very significant investments in environmental causes, supply chain sustainability and special grants for good works. It seems to me we need to be very careful about making prohibitions for geographic labels when, even on the most superficial analysis, a .patagonia may have been a very good thing for both the applicant, the region and the people in the region. Blanket prohibitions or “preventions” are not a good idea without a really explicit understanding of what is being “protected", why and with what objective instruments. In this case, what if Argentina and Chile had opposing views? What would an applicant do if one supported and the other didn’t; one provided a letter of support; one a letter of non-objection; two letters of non-objection on different grounds? What would independent evaluators do in those circumstances? What if one government was voted out of office and, in the other country, a coup took place during the evaluation process? We also need to work much harder on understanding how legitimate objections can be made from any stakeholder, not just governments. Using the GAC as a proxy evaluator is not the way to do that, given the GAC’s very clear mandate and role. It might be better to flip this analysis on its head…could users of .patagonia been misled or confused by a .patagonia TLD? If so, that is addressable in consumer protection law? I look forward to hearing other’s views about whether we could also apply these questions to Greg’s other examples? Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 24 May 2018, at 9:04 am, Olga Cavalli <olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>> wrote: Greg, about: .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com/> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au/><http://www.auda.org.au<http://www.auda.org.au/>> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting><mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/><http://www.indiaig.in/> | registry.in<http://registry.in/><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org><mailto:Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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+1 and even if the string was intended to be used for entirely non-geo purposes, there is still no answer to the basic questions: (1) why should the corresponding relevant public authorities be left aside? the unique string would be delegated away without having considered their interests beforehand, which -as we have seem are at least sometimes rights to the name under national law... this is only a recipe for protracted conflicts... (2) how would that intended use be policed, especially regarding the conduct of third parties, such as registrants? For example, if „luzern“ was delegated even if the intended use was non-geo, the unique resource it represents would have been delegated away to only one interest-holder in that string, but the name us such still would keep its geographic meaning, and in any case the city of Luzern could still regard this as impinging on their name rights under Swiss law. In the end the „intended use“ does not avoid that the string as such keeps having geoname qualities and that rights, interests and policies from affected communities will be affected. That is why „intended use“ is of no practical use and only elevates the risk for conflict anf gaming the system. best Jorge ________________________________ Von: Yrjö Länsipuro <yrjo_lansipuro@hotmail.com> Datum: 24. Mai 2018 um 08:43:05 MESZ An: Liz Williams <liz.williams@auda.org.au>, Olga Cavalli <olgacavalli@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear all, .patagonia is an interesting and illustrative case on the borderline between geographic and non-geographic use. If the applicant is entirely devoid of any association to a geographic region known as Patagonia, why then does the company logo depict the skyline of Cerro Fitz Roy<https://en.wikipedia.org/wiki/Monte_Fitz_Roy> in Patagonia (https://en.wikipedia.org/wiki/Patagonia_(clothing))? The company clearly wants to be associated with the region and to leverage its rugged-attractive image, which seems to fit marvelously the marketing purposes of the ecology-minded manufacturers of outdoor clothing. This is entirely understandable, but I wonder where this falls between geographic and non-geographic use, and don't the people and government(s) of the region merit just even a "do you mind?" letter, if its name is proposed to be used as a unique, exclusive resource by someone? Best, Yrjö [https://upload.wikimedia.org/wikipedia/en/thumb/9/9b/Patagonia.svg/200px-Patagonia.svg.png]<https://en.wikipedia.org/wiki/Patagonia_(clothing)> Patagonia (clothing) - Wikipedia<https://en.wikipedia.org/wiki/Patagonia_(clothing)> en.wikipedia.org Coordinates. Patagonia, Inc. is an American clothing company that sells outdoor clothing marketed as sustainable.The company was founded by Yvon Chouinard in 1973, and is based in Ventura, California. ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> on behalf of Liz Williams <liz.williams@auda.org.au> Sent: Thursday, May 24, 2018 6:40 AM To: Olga Cavalli Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Olga I wonder if we could just explore this some more? If, as Greg has suggested, the applicant had wanted to use .patagonia as an expression of their brand and had no intention of using it as what we think of as a geographic identifier, then it would no surprise that the governments of Argentina and Chile who share the Patagonian region (https://en.wikipedia.org/wiki/Patagonia) were not consulted? Under the AGB rules, it was not a requirement for an applicant even if, in hindsight, it might have been a good idea. [https://upload.wikimedia.org/wikipedia/commons/thumb/c/c6/Patagonia_rg.png/1200px-Patagonia_rg.png]<https://en.wikipedia.org/wiki/Patagonia> Patagonia - Wikipedia<https://en.wikipedia.org/wiki/Patagonia> en.wikipedia.org Patagonia (Spanish pronunciation: [pataˈɣonja]) is a sparsely populated region located at the southern end of South America, shared by Argentina and Chile.The region comprises the southern section of the Andes mountains as well as the deserts, pampas and grasslands east of this southern portion of the Andes. As we know, the Patagonian region is a splendid area with unique wildlife, tourism possibilities and is very attractive to all kinds of research and environmental activities. If one takes a look at the http://www.patagonia.com/home/ page one will see that the founders of the the company are committed environmentalists and, since May 2013, have made very significant investments in environmental causes, supply chain sustainability and special grants for good works. It seems to me we need to be very careful about making prohibitions for geographic labels when, even on the most superficial analysis, a .patagonia may have been a very good thing for both the applicant, the region and the people in the region. Blanket prohibitions or “preventions” are not a good idea without a really explicit understanding of what is being “protected", why and with what objective instruments. In this case, what if Argentina and Chile had opposing views? What would an applicant do if one supported and the other didn’t; one provided a letter of support; one a letter of non-objection; two letters of non-objection on different grounds? What would independent evaluators do in those circumstances? What if one government was voted out of office and, in the other country, a coup took place during the evaluation process? We also need to work much harder on understanding how legitimate objections can be made from any stakeholder, not just governments. Using the GAC as a proxy evaluator is not the way to do that, given the GAC’s very clear mandate and role. It might be better to flip this analysis on its head…could users of .patagonia been misled or confused by a .patagonia TLD? If so, that is addressable in consumer protection law? I look forward to hearing other’s views about whether we could also apply these questions to Greg’s other examples? Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 24 May 2018, at 9:04 am, Olga Cavalli <olgacavalli@gmail.com<mailto:olgacavalli@gmail.com>> wrote: Greg, about: .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg On Fri, May 18, 2018 at 12:11 PM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> wrote: Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com/> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au/><http://www.auda.org.au<http://www.auda.org.au/>> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting><mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/><http://www.indiaig.in/> | registry.in<http://registry.in/><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org><mailto:Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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Dear Olga, I agree: You just found proof that the “no-geo use” provision can cause IMMENSE harm – and the easiest way to mitigate the immense risks would be to eliminate it for cities as well (there is already no “no-geo use” provision for capital cities or ISO 3166 entries). As a trade-off we could limit the government support requirement for cities to SIZEABLE entities! Here a version: We keep everything like it is: if someone applies for a string identical to a “city” and intends geo-use: Government support is required. If a brand applies and has no-geo use intent: they do not need a support letter. However: right now capital cities and national sub regions (ISO 3166 Alpha 2) are already EXCEMPTED from the no-geo use provision! Let’s add BIG cities as well. Big as in: e.g. minimum 500,000 inhabitants. That list is actually not very long – and there should be close to ZERO overlaps with generic terms – and only very few affected brands: these would have to go the extra step to get the letter of non-objection! Why are all capital cities protected (and dozens are really small) – but LARGE cities not? If a city has a Million people: that’s a Million people being affected when their city-name gets snagged away by a brand! Big cities are AT LEAST as important (and their citizens as much impacted) as capitals and national sub regions. The result: * If someone plans to run a gTLD as a city-gTLD they have to ALWAYS get the approval of the city. If there are several cities: then from all of them (make policies that both cities agree with). They term “city” needs a bit more definition though! * If the applicant has no-geo use intent: they only need Government support if the city is larger than (e.g.) 500k people – otherwise not. (the exact cut-off limit needs to be discussed) * Potential addition: If there is a “BIG” city (e.g. 500k upwards) and the other city with identical name is not; then only the big city’s support is required (as right now this is true with capital cities)! That even if the applicant applies for the small city of course! * In other words: We would process BIG cities (500k upwards) exactly like capital cities – which kind of makes much sense. The city problem would be solved that way; generic term based and brand applications would almost NOT be affected at all. But we still need an extra provision for “regions” like Patagonia. But that is independent from the city category. Thanks, Alexander From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Olga Cavalli Sent: Thursday, May 24, 2018 2:04 AM To: Greg Shatan <gregshatanipc@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Greg, about: “.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.” the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >: Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch> > wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg
I agree that we should add BIG cities to the protected list and treat them the same as capital cities. If BIG means min. 500,000 people I would also agree with that. The following U.N. document uses the greater urban area as a basis for population size where possible (although the document notes that it is not always possible). According to this document, at the 500,000 level, we would be talking about roughly 1000 names. http://www.un.org/en/development/desa/population/publications/pdf/urbanizati... Marita On 5/24/2018 5:54 AM, Alexander Schubert wrote:
Dear Olga,
I agree: You just found proof that the “no-geo use” provision can cause IMMENSE harm – and the easiest way to mitigate the immense risks would be to eliminate it for cities as well (there is already no “no-geo use” provision for capital cities or ISO 3166 entries). As a trade-off we could limit the government support requirement for cities to SIZEABLE entities!
Here a version:
We keep everything like it is: if someone applies for a string identical to a “city” and intends geo-use: Government support is required. If a brand applies and has no-geo use intent: they do not need a support letter. However: right now capital cities and national sub regions (ISO 3166 Alpha 2) are already EXCEMPTED from the no-geo use provision! Let’s add BIG cities as well. Big as in: e.g. minimum 500,000 inhabitants. That list is actually not very long – and there should be close to ZERO overlaps with generic terms – and only very few affected brands: these would have to go the extra step to get the letter of non-objection! Why are all capital cities protected (and dozens are really small) – but LARGE cities not? If a city has a Million people: that’s a Million people being affected when their city-name gets snagged away by a brand! Big cities are AT LEAST as important (and their citizens as much impacted) as capitals and national sub regions.
The result:
·If someone plans to run a gTLD as a city-gTLD they have to ALWAYS get the approval of the city. If there are several cities: then from all of them (make policies that both cities agree with). They term “city” needs a bit more definition though!
·If the applicant has no-geo use intent: they only need Government support if the city is larger than (e.g.) 500k people – otherwise not. (the exact cut-off limit needs to be discussed)
·Potential addition: If there is a “BIG” city (e.g. 500k upwards) and the other city with identical name is not; then only the big city’s support is required (as right now this is true with capital cities)! That even if the applicant applies for the small city of course!
·In other words: We would process BIG cities (500k upwards) exactly like capital cities – which kind of makes much sense.
The city problem would be solved that way; generic term based and brand applications would almost NOT be affected at all. But we still need an extra provision for “regions” like Patagonia. But that is independent from the city category.
Thanks,
Alexander
*From:*Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] *On Behalf Of *Olga Cavalli *Sent:* Thursday, May 24, 2018 2:04 AM *To:* Greg Shatan <gregshatanipc@gmail.com> *Cc:* gnso-newgtld-wg-wt5@icann.org *Subject:* Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Greg,
about:
*//*
*/“/**/.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today./**/”/**//*
the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile.
Applicant just ignored the meaning that Patagonia as a name has for South America.
Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc.
If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different.
Best
Olga
2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>:
Giacomo,
Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying.
While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond.
You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)"
You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.)
*GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). *According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. *If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection.*
*.Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. *It's not clear that an intended use concept would have mattered here. However it's fair to say that* if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided.*
*.Spa: There were 3 applications, none of which had a geographic intended use. *One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. *If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation.*
*.Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded.*Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.
*.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. *In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.**
In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications.
In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems."
Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof."
Best regards,
Greg
On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch>> wrote:
Just one de
in
tail:
I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion.
I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems.
Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so.
I wish you all a restful week end.
Giacomo
*De: *Greg Shatan
*Envoyé: *samedi, 19 mai 2018 07:43
*À: *Maureen Hilyard
*Cc: *gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org>
*Objet: *Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook
Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"?
Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties.
It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others.
For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion.
Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy.
Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England.
In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.).
It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests.
A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition.
Best regards,
Greg
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Well, Currently we have general requirement (independent from the intended use) for Government support for: * ISO 3166-2 Elements (principal subdivisions of countries) * UN regions (mostly irrelevant and pose no real impact) * CAPITAL cities Then there is the category of “cities” – and in the 2012 AGB they only require Government support if there is an intended geo-use! My rationale is that there must be a number “X” – if a city has more than X inhabitants it is AT MINIMUM as important as a “principal subdivision” or “capital city” – especially if that number X is about 500k people: there are myriads of capital cities and subdivisions that are smaller. So all I suggest is to add “cities with more than X inhabitants” to the same category as capital cities. How X is defined is then a second task – and wholly independent. Thanks, Alexander From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Marita Moll Sent: Friday, May 25, 2018 11:46 PM To: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook I agree that we should add BIG cities to the protected list and treat them the same as capital cities. If BIG means min. 500,000 people I would also agree with that. The following U.N. document uses the greater urban area as a basis for population size where possible (although the document notes that it is not always possible). According to this document, at the 500,000 level, we would be talking about roughly 1000 names. http://www.un.org/en/development/desa/population/publications/pdf/urbanizati... Marita On 5/24/2018 5:54 AM, Alexander Schubert wrote: Dear Olga, I agree: You just found proof that the “no-geo use” provision can cause IMMENSE harm – and the easiest way to mitigate the immense risks would be to eliminate it for cities as well (there is already no “no-geo use” provision for capital cities or ISO 3166 entries). As a trade-off we could limit the government support requirement for cities to SIZEABLE entities! Here a version: We keep everything like it is: if someone applies for a string identical to a “city” and intends geo-use: Government support is required. If a brand applies and has no-geo use intent: they do not need a support letter. However: right now capital cities and national sub regions (ISO 3166 Alpha 2) are already EXCEMPTED from the no-geo use provision! Let’s add BIG cities as well. Big as in: e.g. minimum 500,000 inhabitants. That list is actually not very long – and there should be close to ZERO overlaps with generic terms – and only very few affected brands: these would have to go the extra step to get the letter of non-objection! Why are all capital cities protected (and dozens are really small) – but LARGE cities not? If a city has a Million people: that’s a Million people being affected when their city-name gets snagged away by a brand! Big cities are AT LEAST as important (and their citizens as much impacted) as capitals and national sub regions. The result: * If someone plans to run a gTLD as a city-gTLD they have to ALWAYS get the approval of the city. If there are several cities: then from all of them (make policies that both cities agree with). They term “city” needs a bit more definition though! * If the applicant has no-geo use intent: they only need Government support if the city is larger than (e.g.) 500k people – otherwise not. (the exact cut-off limit needs to be discussed) * Potential addition: If there is a “BIG” city (e.g. 500k upwards) and the other city with identical name is not; then only the big city’s support is required (as right now this is true with capital cities)! That even if the applicant applies for the small city of course! * In other words: We would process BIG cities (500k upwards) exactly like capital cities – which kind of makes much sense. The city problem would be solved that way; generic term based and brand applications would almost NOT be affected at all. But we still need an extra provision for “regions” like Patagonia. But that is independent from the city category. Thanks, Alexander From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org] On Behalf Of Olga Cavalli Sent: Thursday, May 24, 2018 2:04 AM To: Greg Shatan <mailto:gregshatanipc@gmail.com> <gregshatanipc@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Greg, about: “.Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today.” the applicant did not make any previous contact with community / governments or any authority in Argentina or Chile. Applicant just ignored the meaning that Patagonia as a name has for South America. Applicant just ignored the fact that its a name which involves many communities, a large region in both countries and its the name of hundreds of different companies / brands already legally established in both countries under the national trade mark law, paying taxes, etc etc. If the applicant would have contacted the interested parties before submitting the application, perhaps the story could have been different. Best Olga 2018-05-23 2:06 GMT-03:00 Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >: Giacomo, Forgive me -- when you said "We need to skip this concept [intended use] from the debate", I thought you meant that we should all stop talking about it. It seemed clear enough at the time. Thanks for clarifying. While you said you will not spend any more time on the topic, you did ask a question to the group, so it seems only fair to answer it, even if you will not respond. You asked: "How such a concept of the “intended use” would have helped" in "some of the most contentious TLD of the last round (most of them unresolved till today)" You mentioned 5 gTLD applications, but left it there. Looking at these five applications with the facts I have at hand, it seems clear that an "intended use" concept would have helped a great deal. (Apologies if any of the summaries are a bit simplified or not quite accurate.) GCC: The applicant for .GCC had a geographic intended use but did not seek consent/non-objection from the relevant authorities (the Gulf Cooperation Council). According to the application ".GCC is an open Top Level Domain (TLD) created specifically to enhance and develop the provision of Internet services for users in the Gulf and Middle East region." GCC is the acronym for the Global Cooperation Council. The GAC Early Warning explained that "GCC is a known abbreviation for Gulf Cooperation Council. The GCC is a political and economic union of the Arab states bordering the Arabian Gulf, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates." The GCC then filed a Legal Rights Objection, which was subsequently terminated. If an intended use concept had been in place, the applicant would have known that it needed to approach the Gulf Cooperation Council for consent/non-objection. .Africa: Here, two applicants both had a geographic intended use and both claimed to have consent from the relevant authorities. It's not clear that an intended use concept would have mattered here. However it's fair to say that if there had been a better-developed process for consent/non-objection when the intended use warranted it, perhaps the difficulties would have been avoided. .Spa: There were 3 applications, none of which had a geographic intended use. One application described its intended use in its application like this: "The .SPA TLD will be attractive to a very broad and diverse group of registrants. There are literally hundreds of different uses of the word SPA, broadly including day spas, dental spas, garden spas, medical spas, bath spas, hot tubs, soda fountains, etc., as well as a corporate identifier in certain jurisdictions. We will operate the .SPA TLD in an inclusive manner, and in the best interests of entities in all jurisdictions and in a legitimate and secure manner." The second stated: "The mission of the .SPA top-level domain is to offer owners of spas and health resorts a short and descriptive top-level domain under which to register good, usable second-level domains at an affordable price. The .SPA gTLD will be useful for spas, resorts, salons, health retreats and other businesses that group themselves under the “spa” name. Consumers searching for spas will use the .SPA gTLD to help differentiate spas from other businesses offering non-spa services." The third said: The .spa TLD aspires to be the domain of choice for the global spa community. For the spa industry much of the novelty and value will be in the name itself. It is well understood that words evoke feelings and emotions. This technique and knowledge is popularized in advertising and branding. Looking at the existing TLDs, it is hard to imagine any of them being able to evoke the types of feeling necessary for a successful spa. The area of specialty for the Registry is in the spa community and to provide a namespace based on a name that evokes feelings of relaxation, traquillity,rejuvenation that are complementary to spas around the world. Nonetheless, Belgium objected, based on the city of Spa, Belgium (pop. 10,345). ICANN ultimately rejected the objection. If an intended use concept had been in place, Belgium would have understood there was no basis for their objection, and would not have proceeded with the objection. Applications would have proceeded more quickly toward delegation. .Amazon: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. Because there were no clear rules, an extended set of ad hoc processes have kept this application from proceeding. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. .Patagonia: Here again, the applicant did not have a geographic intended use. As above, if the intended use concept had been in place, it would have been clear that there was no basis to object, and would not have proceeded. In this case, the applicant withdrew the application because it could not afford the long grueling challenge ahead. If the intended use concept was in place, the application would have proceeded and we would have a .patagonia gTLD today. In each of these cases, an intended use concept would have made it much more clear when a letter of consent/non-objection was required, and when it was not. Also, it would have been much more clear when there were grounds for an objection and when there were not. The lack of such a clear distinction is at the root of the troubles in each of these applications. In sum, the intended use concept would have helped a great deal in each of these cases. As such, it is most clearly "a path that deserves to be still explored now that we are looking for future proof remedies to known problems." Thank you for the opportunity to explain this, Giacomo. I hope you will explain in a detailed fashion how you concluded that the intended use concept did not work in the previous gTLD round, including how this "proved" not to work in the previous round. I look forward to your "proof." Best regards, Greg On Sat, May 19, 2018 at 4:51 AM, Mazzone, Giacomo <mazzone@ebu.ch <mailto:mazzone@ebu.ch> > wrote: Just one de in tail: I never said or wrote to stop to talk about "intended use". Such a prescription would be against my ethic principles of open and fair discussion. I simply said that this concept has proved in the previous gTLD's round, not to work. So (in my opinion -and not only in mine) it's not a path that deserve to be still explored now that we are looking for future proof remedies to known problems. Having said that, if you want to spend more time on it, you're perfectly free to do so. I will not. But will be not me to forbid anyone to do so. I wish you all a restful week end. Giacomo De: Greg Shatan Envoyé: samedi, 19 mai 2018 07:43 À: Maureen Hilyard Cc: gnso-newgtld-wg-wt5@icann.org <mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Well, the idea that there is an "owner" of a resource such as a TLD before it has even been applied for is interesting, though peculiar. But how would one decide which theoretical applicant is that "owner"? Trademarks evoke positive associations, often very significant ones. Indeed, one of the essential elements of a trademark is that possesses "secondary meaning," which is the association between the mark and the attributes of the source or origin of the products and services. This secondary meaning (or "goodwill") in turn is a key component of the value and strength of the mark. Some marks are worth billions of dollars, are registered and used in dozens or even well over a hundred countries, have long histories, and are known and beloved by millions, if not billions of people. As a matter of law and fact, this makes trademarks assets and rights that are "owned" and controlled by particular parties. It's true of course that geographic names can evoke positive associations of varying strength and significance. Others evoke negative associations, and other evoke no significant associations at all. While it might make some sense to call each governments an "owner" of the term when used to identify the place, this "ownership" is largely an analogy and not a fact, particularly by contrast with trademarks, for which ownership is of the essence, and protected by widely accepted treaties, such as the Paris Convention, the Madrid Convention and the GATT, among many others. For that matter, words used in a generic fashion may evoke positive associations (like "raindrops on roses and whiskers on kittens ... doorbells and sleigh bells," etc.). However there is no ownership right or control associated with words used in a generic fashion. Many terms may fall into all three categories (and more). There's no particular test to determine whether a term will be more evocative of a place or a brand or a thing. There's no test for which one might predominate in the abstract. Of course, context will help greatly. But in most cases, a brand will not be "leveraging the positive connotations of a city name" where they share the term -- rather it will be a mere coincidence, an irrelevancy. Depending on circumstances, it's just as valid to question whether a brand would want its goodwill to be associated with some city or town. In many other cases, this could be entirely irrelevant, as there would be no association between one usage or another. For example, a .rock TLD marketed to lovers of rock music or used as a brand by Dwayne "The Rock" Johnson would not be associated with the village of Rock. A .bath TLD intended for use in connection with bath products and experiences is not going to be associated with Bath, England. In any case, it's inappropriate and without basis to decide that one type of use reigns supreme over all others in all cases. We could consider some sort of evaluation process to determine if a given trademark is more significant than a given place, in which case an applicant seeking to use the string for the place would need to seek a letter of consent or non-objection from the brand. Or we could decide that every geographic use needs to seek consent or non-objection from every brand owner using that term as their brand -- or maybe we just give that right to equal numbers of brands and marks, based on reaching a certain level of significance (population, economic value, etc.). It's far simpler (and fairer) to favor the applicant as a general matter. After all, they are the one participating in the TLD domain name system. If Delta Airlines applies for .delta, and decides it might be worthwhile for financial or public interest reasons to offer SLDs to Vietnam for mekong.delta and Mississippi for mississippi.delta, that's fine, but it should be the applicant's decision, not something that is forced on them by a system slanted to favor geo-centric interests. A system that determines that there is a single owner of a unique string in which many have an interest for different reasons is unfair and unworkable. It would be even more unfair and unworkable to decide the "winner" in advance, merely based on their type of interest. I doubt we will come anywhere near consensus on such a system. Unlike Giacomo, I won't instruct you to stop talking about it -- that's not the way this process works. But we would be better served by looking at outcomes that better balance varying interests while better keeping in mind the key values f innovation and competition. Best regards, Greg _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org <mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
Dear all The non-objection letter is not an ownership, but a requirement open to any kind of applicant: brands, communities, businesses, whatever. It just makes sure that the relevant public authority does not object to the initiative and is an instrument to get everyone on the table. Shared use is one possible outcome, but many public authorities may only be interested in participating in the governance, in setting some rules or may have a pure laissez faire approach. As far as experience goes they rarely are interested in running the TLD by themselves... The non-objection letter leaves that to the parties as seen in the 2012 round. Hence, I think we should see this instrument as allowing for positive-sum games and we should not frame it as what it is not, i.e. a zero sum game... best Jorge ________________________________ Von: Maureen Hilyard <maureen.hilyard@gmail.com> Datum: 18. Mai 2018 um 18:11:47 MESZ An: Yrjö Länsipuro <yrjo_lansipuro@hotmail.com> Cc: Mazzone, Giacomo <mazzone@ebu.ch>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>, javrua@gmail.com <javrua@gmail.com>, gnso-newgtld-wg-wt5@icann.org <gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Exactly Yrjo. the benefit sharing model will only work if the "owner" of the resource gives their consent in the first place. There have to be seen to be potential benefits to BOTH parties. On Fri, May 18, 2018 at 2:18 AM, Yrjö Länsipuro <yrjo_lansipuro@hotmail.com<mailto:yrjo_lansipuro@hotmail.com>> wrote: Hi all, Some geographic names evoke positive images and associations – being, eg. those of famous holiday destinations or of well-known centers of excellence in various fields. An applicant may want to leverage the positive connotations of a city name to promote a product or service, in itself geographically unrelated to the city. In such a case, there might exist an opportunity for benefit-sharing between the applicant and the city. However, it depends on whether the city is willing to be associated with the activity of the applicant – in fact, lending its good name to it. This may not always be the case, cf. “Capri vs. tobacco industry” mentioned by Giacomo some time ago. Best, Yrjö ________________________________ From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> on behalf of Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch>> Sent: Friday, May 18, 2018 3:06 PM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>; javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Of course. This make sense. Message d'origine De: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Envoyé: vendredi, 18 mai 2018 13:52 À: javrua@gmail.com<mailto:javrua@gmail.com>; maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Objet: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hola Javier Such shared-use agreements are, as said, one possible outcome of prior contacts enabled by the non-objection letter :-) Best Jorge ________________________________ Von: Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com>> Datum: 18. Mai 2018 um 13:29:47 MESZ An: Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> <gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Very very interesting , Maureen. Thank you. I encourage other WT members to comment on this very specific idea. Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua [https://media.licdn.com/dms/image/C4E03AQHPwt2QQSZKcg/profile-displayphoto-shrink_200_200/0?e=1531958400&v=beta&t=fdRGN8NnjbQ4gjFRO5IeN4wY9xvJ_BPVAxInqQ16PYg]<https://www.linkedin.com/in/javrua> Javier Rúa-Jovet | LinkedIn<https://www.linkedin.com/in/javrua> www.linkedin.com<http://www.linkedin.com> View Javier Rúa-Jovet’s profile on LinkedIn, the world's largest professional community. Javier has 8 jobs listed on their profile. See the complete profile on LinkedIn and discover Javier’s connections and jobs at similar companies. On May 18, 2018, at 7:02 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: Thank you Javier I guess i can explain where it is I am coming from to make such as suggestion. But it makes sense to me because I am working on the development of this policy at the moment. What I am dealing with is an environmental issue (the Nagoya Protocol), and the basics of it are: * There is a provider who owns a particular resource, and a user who wants to share the use of this resource. * The user must first get Prior Informed Consent to get access to the resource (similar to the non-objection letter). * Once this is in hand, they then move onto negotiating a contract which includes an agreement of the benefits (Mutually Agreed Terms) that each party will receive from this contractual relationship. * There are external monitors (Checkpoints) who make sure that all agreements are kept and benefits are being attributed, etc. But that's it (in a nutshell). On Fri, May 18, 2018 at 12:39 AM, Javier Rua <javrua@gmail.com<mailto:javrua@gmail.com><mailto:javrua@gmail.com<mailto:javrua@gmail.com>>> wrote: Maureen, Please do share that idea! There has been substantial discussion on conflict avoidance models, and even some “TLD sharing” in these wt5 threads. Your contribution would definitely be appreciated! Javier Rúa-Jovet ALAC +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua On May 18, 2018, at 5:59 AM, Maureen Hilyard <maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com><mailto:maureen.hilyard@gmail.com<mailto:maureen.hilyard@gmail.com>>> wrote: I think that core to Mazzone's argument for me, is : “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? I am currently working in an day job that has nothing to do with ICANN or TLDs, but the content that I am working with relates to "benefit-sharing". And I wondered if this model could be incorporated into the discussion, where the government and the applicant might be able to make an agreement on some mutual benefit/s of sharing a name. Just a thought along the lines of what I am dealing with in a completely different context but, would that ever work here? On Thu, May 17, 2018 at 11:48 PM, Mazzone, Giacomo <mazzone@ebu.ch<mailto:mazzone@ebu.ch><mailto:mazzone@ebu.ch<mailto:mazzone@ebu.ch>>> wrote: Dear colleagues, I think that we are insisting on a dead-end row, when we discuss about the „intended use“. This concept does not help when we are talking about a unique resource. If we look at some of the most contentious TLD of the last round (most of them unresolved till today) - Amazon - Patagonia - Spa - Africa - GCC How such a concept of the “intended use” would have helped ? I cannot figure out at all. We need to skip this concept from the debate and find real solutions applicable when we talk of a unique resource as today are TLDs. I think that what Jeff Neuman proposal about possible dual use of TLD needs to be explored. I remember here what he said few days ago: * “ What if there were ways to allow uses of the TLD by the applicant, but in some way also allowing the applicable government to also get some use? * I do know of at least one situation (which I am not sure is publicly known….so cannot go into detail) where two parties had an interest in a particular TLD and arrangements were made to ensure both parties were entitled in some ways to use the space.” ICANN role is to find positive and creative solutions and to act in the public interest. This would be an interesting challenge to explore, instead than wasting time with the concept of the “intended use”, that has proved not to solve the issues we are discussing here. Giacomo From: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] On Behalf Of Liz Williams Sent: vendredi 18 mai 2018 10:06 To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au><mailto:liz.williams@auda.org.au<mailto:liz.williams@auda.org.au>> www.auda.org.au<http://www.auda.org.au><http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com><mailto:ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28<https://maps.google.com/?q=Akazienstrasse+28&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28+%0D%0A10823+Berlin+%0D%0ADeutschland+-+Germany&entry=gmail&source=g> 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting>> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin<https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g><https://maps.google.com/?q=Akazienstrasse+28,+10823+Berlin&entry=gmail&source=g> Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org%3Cmailto:gnso-newgtld-wg-wt5-bounces@icann.org>>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in><mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org><mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in><http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in><http://www.indiaig.in/> | registry.in<http://registry.in><http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com><mailto:haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org><mailto:gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org>> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org><mailto:Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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Hi Liz As you know, I am interested in cycling and bicycles 😊 So in fact there is a German company with an EU trade mark for the word DELHI (in Class 12, bicycles and bicycles fittings of all kinds https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/4/EU009890138 ). No doubt the choice of brand name was related to the popularity and high use of bicycles in the Indian capital … If this company were to apply for the new gTLD .DELHI for example as a closed .brand, you would argue there is no need for any letter of non-objection or support? I would have thought that in this scenario, absent any non-objection from the Indian capital (actually it’s New Delhi, but Delhi is the commonly used name) they should be using .DELHIBICYCLES or similar derivative, and the evaluation process should encourage/ facilitate that dialogue and leave .DELHI free for use as a capital city TLD. There is also a Delhi in New York state, USA, and I am sure many others in the world. The issue with intended use, is that for a TLD as a global public resource, I think that most people would associate the hypothetical .DELHI with the Indian capital as opposed to the bicycle company or US town (population 5,117 in the 2010 census according to Wikipedia). I guess they would soon work it out once they visited any websites, but may be I view it a bit like initial interest confusion, the damage is already done, and once granted as a TLD I don’t see much of a curative rights mechanism that could be viable if there were to be widespread confusion caused, or a false impression of authorisation. I am not saying btw that either the bike company or the US town would be doing anything wrong legally in making an application for .DELHI due to some superior right as such, just that if they were to be entitled to it – by virtue of the ICANN process which are giving input to – without the blessing of the Indian capital, or it were to go to the party with the deepest pockets in an auction, then I’d say the policy had gone astray somewhere. Similarly, if the applicant for a generic open or .brand .ROCK for example were to be blocked or to require non-objection from the Cornish village (population 1,203) then that, too, would in my eyes be a perverse policy outcome (even if it is the home of Doombar ale). My understanding of the current AGB2012 policy is that does address both of the above situations which is why I’m more or less ok with it whilst accepting that it could yet be improved to avoid the dolphins in tuna nets that Greg describes. Have a great weekend everyone. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Liz Williams Sent: 18 May 2018 09:06 To: Greg Shatan <gregshatanipc@gmail.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hello Greg I really appreciated your thoughtful contribution on this (after Heather and Nick) and perhaps you’ve captured the nub of the problem with potential urban TLDs, noting I have deliberately changed the terminology from “city” and I have deliberately not used the term “geo” TLD which is ICANN shorthand for a concept that does not necessarily exist outside that particular bubble. Perhaps you have articulated what some are most concerned about which is "false impressions of authorization” (even though some argue that urban TLDs' public authorities do not necessarily have the right to veto or even make decisions about TLD labels”)? So, if we are concerned about “false impressions of authorisation” perhaps the key to this might be a “test” in the evaluation criteria about an application creating that false impression (not dissimilar to misleading customers at the second level?). If evaluators thought that applicants were proposing the use of a TLD which created that false impression, then there might be cause for asking Clarifying Questions (a formal process in the evaluation system). If though, an applicant just wanted to get on with a TLD without worrying about “geographic” concerns, they would be free to do so. They would not need letters of support or non-objection because they are irrelevant to the application... Further ideas most welcome. Liz …. Dr Liz Williams | International Affairs .au Domain Administration Ltd M: +61 436 020 595 | +44 7824 877757 E: liz.williams@auda.org.au<mailto:liz.williams@auda.org.au> www.auda.org.au<http://www.auda.org.au> Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. On 18 May 2018, at 6:41 am, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Nick, I don’t think that Heather was suggesting “no rules,” though I’ll let her speak for herself. Rather, I see her suggesting that we stick to “the rule of law” and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don’t create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and “pragmatic compromises.” As I read your email, the key policy objective you cite is avoiding “the false impression of an authorisation by a state or other authority.” That seems to be a reasonable objective. You state that letters of non-objection were helpful to a “significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention.” I assume that “national and city TLDs” means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a “geoTLD”). Here, I think we might find at least tentative agreement — a “geoTLD” functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a “false impression of authorization,” and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should “Compare and contrast with other applications some six years later which are still stuck in the process.” I’m not sure which applications you’re thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The “other [non-geoTLD] applications ... still stuck in the process” are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs “improvement,” as you would say. The improvement needed is to remove the non-objection process in these instances. There’s no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel “false impressions of authorization” by creating a false impression that every string that has a geo-meaning must have been authorized. This type of “false false impression” can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely “false impression of authorization.” This bring us back to the concern that Heather was suggesting “no rules.” After thinking this through, it’s even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the “city’s TLD” or the “state’s TLD” or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a “false impression of authorization”. At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a “Geo-homophone” — at any point in the process. This would bring clarity to measures dealing with the key issue you highlight — a remedy for false impression of authorization — while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably “stuck in the process”). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting/> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term “city” for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that “letter of non-objection” model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. • To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) • The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. • At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of • City Names • Names with Geo-graphic Significance • Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in/> | www.indiaig.in<http://www.indiaig.in/> | registry.in<http://registry.in/> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Hi Greg Thanks for those thoughts. It looks like we agree in some areas of principle at least. In general terms I dislike rules which don't have a sound basis in terms of policy objectives or which run contrary to established legal norms, which is slightly different from the way you expressed it but I think the general thrust is the same. I don't currently favour an expansion of the geo definitions from 2012 AGB for example, and your description of dolphins stuck in tuna nets is most apt in my view. Looking at the 2012 AGB there seem many areas in which for policy reasons there are restrictions and additional rights which are not based in law; not least CPE, background screening, GAC advice, reserved names at the top level - including ICANN, GNSO etc. I am not saying that those were all sound or worked as they were intended to, but none seemed to have any basis in law, international or otherwise. So there is obviously precedent for non-legal policy rules when assessing an application for a new gTLD (and for the limited sponsored rounds before 2012 I think, though that is before my time). I believe that those TLD applications which were presented as geoTLDs (with non-objections letters etc, some such as .SCOT didn't strictly need them) all successfully made it through the application process to launch. I think that is good evidence for the success of that process, rather than a reason to remove the non-objection letters for future rounds. And let's not lose sight of the fact that the 2012 round in terms of the scope and scale of expansion of the number of TLDs was generally a success, notable exceptions notwithstanding. I think I answered your other points in Liz's subsequent reply to your email; apologies for forking the thread if that is confusing! Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org> On Behalf Of Greg Shatan Sent: 17 May 2018 21:41 To: Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com> Cc: gnso-newgtld-wg-wt5@icann.org Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Nick, I don't think that Heather was suggesting "no rules," though I'll let her speak for herself. Rather, I see her suggesting that we stick to "the rule of law" and avoid making policy for which there is no legal support. One of the touchstones of gTLD policy-making has been that we don't create new rights. We certainly may create new methods for enforcing those rights, and we may seek to adapt off-line rights so that they work in the ICANN context (which may require some judicious re-shaping of the parameters of that right). Lastly, ICANN policy-making has favored (except for technical considerations) after-the-fact curative rights (e.g., UDRP) over before-the-fact preventive rights. Any time policy-making strays from any of these concepts, it must be done with the utmost conservatism. These precepts should govern our exploration of options and "pragmatic compromises." As I read your email, the key policy objective you cite is avoiding "the false impression of an authorisation by a state or other authority." That seems to be a reasonable objective. You state that letters of non-objection were helpful to a "significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention." I assume that "national and city TLDs" means a TLD intended to function as an adjunct to a nation or city referred to in the TLD (i.e., a "geoTLD"). Here, I think we might find at least tentative agreement - a "geoTLD" functioning without authority from the relevant state/authority could lead to a false impression of authorization. And, as far as I know, the TLDs intending to be geoTLDs did make it through the process successfully (however, this must be confirmed). However, context is critical in that analysis. Where the TLD is not functioning as a geoTLD, there is no valid basis to claim a "false impression of authorization," and there Is no need for a letter of non-objection. There may be some extremely limited special cases (e.g., country names), but they must be the exception and not the rule. You advise that we should "Compare and contrast with other applications some six years later which are still stuck in the process." I'm not sure which applications you're thinking, but the applications that I can think of in that category were not geoTLD applications, but rather wanted the TLD for other purposes. If there are any geoTLD applications stuck in the process, please let me (and all of us) know; that would be a valid concern. The "other [non-geoTLD] applications ... still stuck in the process" are examples of situations where the non-objection process did NOT work successfully at all. These are essentially dolphins stuck in tuna nets. This needs "improvement," as you would say. The improvement needed is to remove the non-objection process in these instances. There's no likelihood of confusion, so the process should not be available. Perversely, the existence of an overbroad non-objection requirement might fuel "false impressions of authorization" by creating a false impression that every string that has a geo-meaning must have been authorized. This type of "false false impression" can be eliminated by making the letter of objection process much more narrowly tailored to the case of truly likely "false impression of authorization." This bring us back to the concern that Heather was suggesting "no rules." After thinking this through, it's even more clear that this is not what she meant. Rather, I believe she meant that we need to create rules that are clearly based on rights, rather than creating rights by making up rules. In this instance, that means requiring letters of non-objection only where the applicant seeks to run the "city's TLD" or the "state's TLD" or whatever the equivalent geoTLD is; without a letter of non-objection (or support) such a registry would create a "false impression of authorization". At the same time, we need to make it clear that where there is no false impression of authorization, there should be no power over a gTLD application granted to a "Geo-homophone" - at any point in the process. This would bring clarity to measures dealing with the key issue you highlight - a remedy for false impression of authorization - while eliminating the uncertainties for applicants not seeking to create a geoTLD (including the threat that they could be interminably "stuck in the process"). Greg On Thu, May 17, 2018 at 1:55 PM Katrin Ohlmer | DOTZON GmbH <ohlmer@dotzon.com<mailto:ohlmer@dotzon.com>> wrote: +1 Nick BG Katrin DOTZON GmbH - digital identities for tomorrow Akazienstrasse 28 10823 Berlin Deutschland - Germany Tel: +49 30 49802722 Fax: +49 30 49802727 Mobile: +49 173 2019240 ohlmer@dotzon.consulting<mailto:ohlmer@dotzon.consulting> www.dotzon.consulting<http://www.dotzon.consulting> DOTZON GmbH Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598 Geschäftsführer: Katrin Ohlmer Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin Von: Gnso-newgtld-wg-wt5 [mailto:gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>] Im Auftrag von Nick Wenban-Smith Gesendet: Donnerstag, 17. Mai 2018 18:55 An: harish@nixi.in<mailto:harish@nixi.in>; Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Betreff: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Hi Heather, all This is a very interesting point of discussion. Firstly I think we all agree that clear and predictable rules for applicants going forward is a highly desirable objective. Where the current 2012 AGB can be improved upon then we should identify the offending wording and seek to replace it with something better. The use of the term "city" for example means different things to different people and countries. In the UK I had always understood a city to equate to those population centres with a cathedral, but from Wikipedia it seems there is quite a lot of history and domestic politics to it! https://en.wikipedia.org/wiki/City_status_in_the_United_Kingdom Secondly, I generally accept that in terms of ICANN generally and grant by ICANN of new gTLDs in particular, there is not much by way of international law. (If there were, then we would not need to have all these meetings at all times of day and night to reflect on the policy options, and in fact ICANN would probably just be another UN agency). So for better or worse the task falls to the various ICANN communities, balancing the various interests and stakeholder views from across the globe and coming up with options, and considering the inputs and making pragmatic compromises where appropriate. In turns out that in this field of geo names there are a lot of different opinions and perspectives, which makes this a complicated process! Finally, as I said in my previous post about an eon back in policy terms it is the false impression of an authorisation by a state or other authority that is to be avoided here. To my mind whilst the non-objection process was not perfect by any means, it did work very successfully in relation to a significant number of national and city TLDs who once they had negotiated this hurdle proceeded to delegation and successful widespread use without contention. (Compare and contrast with other applications some six years later which are still stuck in the process). Very open to alternative solutions, such as a fair and transparent early advisory approach, but no rules at all does not feel a good outcome in terms of justification in the general public interest. Best wishes Nick From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces@icann.org<mailto:gnso-newgtld-wg-wt5-bounces@icann.org>> On Behalf Of Harish Chowdhary Sent: 17 May 2018 09:14 To: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Cc: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: Re: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear Heather, I would like to re-iterate the facts again with some queries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application As per Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws, GAC Advice is based on a consensus of the GAC. If the GAC advises that there are concerns about a particular gTLD (generic Top level Domain ) application, the ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns and provide rationale for its decision. * Do you believe "Article 12,Sec 12.2 (ix)(x)(xi), of ICANN bylaws" is not useful as per International Laws? 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law. * Do you suggest that the National Governments are just a party in this context and doesn't reflect the concern and sensitivities of people of the Country? I beleive Mr. Jorge is correct while suggesting that "letter of non-objection" model, apart from being already tested, leaves the decision on the applicable solution to the relevant public authorities in conformity with their national laws and policies. This way it is respecting the diverging national approaches to the question. Further, do you suggest should we start a discussion on which law has precedence over another while they are applied to a Geo-name TLDs. This may again add the one more dimension of complexity to the issue. * National Laws * International Laws * ICANN By-laws It is to be noted that in March 1994, RFC 1591 was published, setting out the naming practice. RFC 1591 reflects the significant amount of work critically for the context of country names as top-level domains.RFC 1591 identified and preserved the link between ccTLDs and the ISO 3166-1 list and established two significant, fundamental principles: 1. The IANA (ICANN) is not in the business of deciding what is and what is not a country. 2. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be onlist. * To date these two principles are still at the core of the policy for allocation and delegation of ccTLDs (and IDN ccTLDs) * The policy on use of two-letter codes as the source for ccTLDs and as documented in RFC 1591, is still valid. * At its core, it relies on the ISO 3166 and its processes and procedures to determine whether a Geographic/Geopolitical entity should be considered a country, and, hence ultimately if a ccTLD code should be assigned to that entity. Based upon the above facts we may again involve the ISO at United Nations (If there is huge complexity at ICANN level (WT#5) in determining the role and imortance of GAC and Goverment laws in delegation of GEO-TLDs) to set a procedure for determining which entities should be and should not be onlist of * City Names * Names with Geo-graphic Significance * Names which were not included in the AGB 2012 Thanks, Harish Chowdhary, Technology Analyst, National Internet Exchange of India ISOC FELLOW | inSIG FELLOW IIREF FELLOW | UASG AMBASSADOR www.nixi.in<http://www.nixi.in> | www.indiaig.in<http://www.indiaig.in> | registry.in<http://registry.in> From: Heather Forrest <haforrestesq@gmail.com<mailto:haforrestesq@gmail.com>> Sent: Thu, 17 May 2018 11:38:39 GMT+0530 To: gnso-newgtld-wg-wt5@icann.org<mailto:gnso-newgtld-wg-wt5@icann.org> Subject: [Gnso-newgtld-wg-wt5] Today's call, and Application of International Law to the GeoNames Provisions of the Applicant Guidebook Dear WT5 colleagues, I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work. I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails. In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions. I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post. 1. The critical difference between domestic and international law, and why it matters Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries. 2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be. 3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law. First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc. On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations. Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making. 4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another. 5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks. Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears. With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed, Heather Forrest WT5 member _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org<mailto:Gnso-newgtld-wg-wt5@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5 ------------------------------------------------------------------------------------------------------------------------------- [NIXI is on Social-Media too. Kindly follow us at: Facebook: https://www.facebook.com/nixiindia & Twitter: @inregistry ] This e-mail is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies and the original message. 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Heather, Thanks for your thorough, expert insights. A question: do you opine that treaties such as the ICCPR are relevant in regards the New gTLD Subsequent Procedures PDP and/or WT5 given the ICANN by-law language on “international law”? Javier Rúa-Jovet +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua
On May 17, 2018, at 2:07 AM, Heather Forrest <haforrestesq@gmail.com> wrote:
Dear WT5 colleagues,
I very much appreciated the agenda item today on improving the efficiency of information exchange and retention. I like the idea of a single document to capture all inputs, but I worry that staff compiling a new and separate compilation of our comments is a less efficient, rather than more efficient, way to work.
I have hesitated to add to the excellent thread that got started on the topic of city names. That thread sparked detailed discussion, but it got very long and complex very quickly (70+ posts). I hope we can continue to explore ways that enable more voices to be heard, and to more efficiently capture inputs from members at the time they are first made, so that we can avoid devoting previous policy staff resources to summarising and re-formatting after the fact what's already been said but is scattered around across thousands of emails.
In it is possible to create a library or repository on the WG wiki or similar, I have attached my comments below also as a PDF. Submissions in writing make it possible to provide more background, explanation, and detail, and point to the sorts of specific examples, laws, etc that support your views - why I think the city names thread is so effective, despite its length. I personally don't believe it's helpful to make a lengthy intervention on our calls, so I haven't done that. I apologise in advance for the length of this post! I tried to be as concise as possible while still providing explanation for conclusions.
I agree with those who have already suggested that it does not make sense to try to categorise and treat differently different types of geographic names (city, country, region, local, landmark, etc), because international law does not make that distinction. References have been made in other posts to international law, and some members have dismissed these comments. I urge us to treat international law seriously in terms of what the law currently is, how it is formed, and how it affects our policy-making. My comments rely heavily on my doctoral thesis, completed in 2012 at the University of Berne, Switzerland, on the question of whether the Applicant Guidebook provisions on geographic names are consistent with international law. My research has been published (https://lrus.wolterskluwer.com/store/product/protection-of-geographic-names-...) and reviewed internationally. I mention this not in an underhanded attempt to sell books, but rather to acknowledge the impossible task of summarising 4+ years and 400+ pages and 1000+ footnotes in this post, and to provide a link to the full set of data and analysis that sits behind this post.
1. The critical difference between domestic and international law, and why it matters
Having examined Swiss law in my thesis as an example of national law dealing with geographic names, I noted the references to 29 Civil Code (and other national laws) in the thread on city names. The Swiss Civil Code applies only in Switzerland's borders, so the right of challenge exists only against those those persons and companies within Swiss jurisdiction. A national law that limits the use of a name (any name, geographic or otherwise) applies in that jurisdiction only. A Swiss law cannot restrict a party in, for example, Indonesia. This is the case unless, under widely accepted fundamentals of international law, the law is classified as a "general principle of international law", meaning that it is universally adopted in most countries' national laws. Determining this is a difficult and time-consuming process, usually undertaken to identify procedural (how an outcome is achieved) rather than substantive (attributing a right or responsibility) legal rules. Even apart from the fact that the question of legal rights in geographic names is a substantive matter rather than procedural one (and thus not the sort of rule traditionally constituting a "general principle of international law"), my research uncovered no such universality or consistency across the laws of the many countries of the world such that the principle of 29 Swiss Civil Code or similar could be characterised as a general principle of international law. When a country has such a law, it is enforceable only against those within that country's jurisdiction. It has been said by many on this list that "Domain names are unique, and global resources". This is precisely why we cannot base the policy for those global resources on national laws unless those laws are shared by all or at least most countries.
2. International law does not explicitly recognise a right of governments to approve/reject a new gTLD application
This is the principal conclusion of my doctoral thesis, albeit distilled into its most concise wording without any of the supporting law or explanation. I have worded this here very carefully, so as to offer a statement of fact, not opinion, because I am aware that some will dismiss it by saying: "Well, this is just your opinion'. After exhaustive research in a range of fields of international law (including state theory and the principles of what makes a country a country in the eyes of the international community plus trade law, IP law, historical custom, and others), both historical and current, and their explanatory notes, texts and drafts, I can state unequivocally that I found no explicit recognition of a government right to a geographic name in any area or source of international law. As a critical next step, I considered whether such a right is implicitly recognised. Some countries have tried, at different points in recent time, to amend the Paris Convention for the Protection of Industrial Property to explicitly recognise government rights in geographic names. These attempts have not - as yet - reached the full agreement of the many countries party to the convention (currently 177); this agreement is necessary for a rule to be international law. The fact that agreement cannot be reached on this point indicates that - at least right now - there is also no implicit international law recognising legal rights of government in geographic names. This conclusion is based on the state of the law today. It is not a prediction of nor an evaluation of future law. This is not my personal judgment on what the law should or could be.
3. Why we should not ignore international law in WT5, and why ICANN policy effectively creating or circumventing it compromises ICANN
In the CWG-Use of Country and Territory Names, as well as in WT5, it has been said that the fact that there is no international law recognising an exclusive right of governments to geographic names does not matter because a) the fact that international law does not contain such a right does not stop ICANN policy from doing so and b) there is more to the issue than just international law.
First, b), there is more to the issue than just international law. Just because one thing is affected by numerous factors affecting different stakeholders does not mean that any single factor can be ignored. Dare I say it, there is more to WHOIS data than just privacy or law enforcement (or any number of other factors). I have yet to hear anyone suggest that we ignore privacy in the next-generation WHOIS. Or law enforcement. etc.
On a), the fact that international law does not contain a right of governments to geographic names does not stop ICANN policy from doing so. It is not simply the case that there is no law; the many countries of the world have tried but cannot agree on this issue. Argument a) sees ICANN making a decision it is not empowered to make, in the face of those bodies that are empowered to make this decision but have not found the agreement necessary to do so. ICANN has in its bylaws committed to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law." Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of ... applicable local law"? Conformity would depend country-by-country, each country having different local laws, only achievable if all countries agreed. If agreement isn't there, this is not a workable foundation for a rule that applies to all; some will inherently be violators from the outset. Each country has a sovereign right to choose how to name a place or to impose restrictions on using names within its own borders. We cannot pick the law of one or some countries and impose it on all countries, because this violates basic principles of sovereignty. A country trying to impose national law outside of its own borders can at its most extreme be interpreted as an intrusion into national sovereignty, and thus an act of war. Think of any country in the world other than the one you live in or represent, and then imagine that country insisting that its laws apply in your home country. This is clearly not an environment that ICANN should create or encourage, and why we need to rely on international law, which by definition is law agreed upon by a large proportion of the world's nations.
Is a policy that gives governments a right of priority or exclusivity in geographic names "in conformity with relevant principles of international law"? No, because not all countries agree that such rights exist. I believe that ICANN oversteps its mandate and legitimacy when it implements a policy that recognises a right that not only is not explicitly recognised in international law, but where we have clear record of not being able to reach agreement. To the outside world, this suggests that ICANN is being used to circumvent the agreement threshold needed to form international law in the bodies where that happens. ICANN's rules are strengthened by, and earn their legitimacy from, their origin in and recognition by legitimate law-making bodies. International law experts do not recognise ICANN - at least at this time - as a body the agreed decisions of which constitute international law. If it is desired and agreed that international law should change or evolve, this action must be taken through those legitimate law-making bodies. Lobbying for new international law has no place in WT5; this needs to be directed at the government representatives who participate in these recognised international law-making bodies. Once such a law is made in those fora, we would ignore it at our peril in ICANN policy-making.
4. An absolute consent/non-objection process that prioritises one party's rights or interests over others is not supported by international law
A rule that gives any stakeholder - public or private - an absolute exclusive or priority right in a geographic name in the DNS (in other words, the right to tell all others they cannot use the name in the DNS, or place restrictions on its use in the DNS) is not supported by international law. No one has absolute or priority rights under international law such that they have the power to decide how or whether others use a geographic name. Again, it is precisely because the DNS is a global resource that we should not presume to prioritise one party over another. This, for better or worse, is how we ended up with auctions to resolve competing applications. I am NOT suggesting that auctions are appropriate here, but simply noting that we ended up with auctions in the AGB because the ICANN community felt it was not possible or appropriate to have to decide whether one applicant's application was more worthy or deserving or stronger etc than another.
5. We need policy that respects national sovereignty and the rights recognised in international law by not giving any one stakeholder priority over others, enables all those with rights or interests in a name to identify their right/interest and risks to those, and resolves applications to avoid those risks.
Rather than aim in WT5 to create (and argue about) a single, one-size-fits-all rule, I believe that we should be aiming to develop predictable steps for equitably and transparently dealing with applications for geographic names, where all interested parties have the opportunity to clearly identify their particular right or interest and test the application against those rights/interests. If I were to propose a change to the flow charts we saw today, it would be a streamlined process, fairer for all. As a strawman I suggest something like the involvement of the Independent Objector in the 2012 applications, whereby the global public interest in a given string was explicitly identified and evaluated against each challenged application, on a case-by-case basis. An individualised resolution to each case can be reached where all interests are evaluated for possible harm, possible alternatives or remediating solutions are identified, all by an independent party, but without the cost or burden or time of litigation. These are global resources, so this cannot be a policy about "protection". Rather, a policy for global resources should be about finding ways to make sure they are used fairly, transparently, in accordance with and not in place of international law. Many comments have been made in this thread along these lines, so I'm hopeful that we're conceptually all closer together than it appears.
With best wishes, and thanks to the co-leads for encouraging a broad range of views to be expressed,
Heather Forrest WT5 member
<Applying International Law to the New gTLD Applicant Guidebook.pdf> _______________________________________________ Gnso-newgtld-wg-wt5 mailing list Gnso-newgtld-wg-wt5@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt5
participants (16)
-
Alexander Schubert -
Greg Shatan -
Harish Chowdhary -
Heather Forrest -
Javier Rua -
Jon Nevett -
Jorge.Cancio＠bakom.admin.ch -
Katrin Ohlmer | DOTZON GmbH -
Liz Williams -
Marita Moll -
Maureen Hilyard -
Mazzone, Giacomo -
Nick Wenban-Smith -
Olga Cavalli -
Rosalía Morales -
Yrjö Länsipuro