[council] Proposed Response to the GAC regarding November 28th Letter

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

All,

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

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

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

Thanks!


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

Dear Madam Chair:

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

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

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

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

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




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