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

["Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx>]

All,

 

Good contributions from various Councillors.  Great to see.  Thanks all for
getting fully engaged with this important issue.

My reading is that we now have to resolve a couple of substantial points
before fine-tuning the draft.  I believe that the points are as follows:

 

1.       Do we include the history?  If so where?  I think I am in favour
but as a factual summary of key points in an appendix / second page.
The motivation is to put it on record and as background or context for this
reply.  I suspect that many (including in the GAC) will read this exchange
in isolation and not have a good grasp on the history.

2.       Policy v Implementation?  Agree with Thomas that we should state
our view politely and clearly but not suggest that we may not understand
accurately.  
Perhaps here an invitation to the GAC to provide their view by contributing
it to any future work (working group) that looks into this?
Here I should note that I suspect that the GAC feels that it is able to
participate and contribute, but not necessarily at the WG level in the same
way as many of us do.

 

Please feel free to support 1 & 2 above or disagree / re-iterate your view.
Also, please comment if I have missed any substantial points.  

Thereafter, I think we should proceed to fine-tuning the draft.

 

Jonathan

 

 

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Thomas Rickert
Sent: 11 December 2012 09:41
To: David Cake
Cc: council@xxxxxxxxxxxxxx
Subject: Re: [council] Proposed Response to the GAC regarding November 28th
Letter

 

David and Mason,

your point regarding the GAC is well understood. I will not try to convince
you of my proposal, but let me explain that I made the proposal since I
would very much like to hear the GAC's view on this. That does not mean that
this view is going to be adopted by us. Also, getting input on the GAC's
understanding of the demarkation of policy vs implementation helps us
understand the GAC better and maybe respond to that to improve the working
relationshipo. 

 

Anyway, even if the group wishes not to ask the GAC for its view, please
amend the language so it does not say that we might misunderstand something.
I think we should not populate the idea that we might be wrong as I truly
believe that this is not the case.

 

Thomas

 

 

 

Am 11.12.2012 um 08:27 schrieb David Cake <dave@xxxxxxxxxxxxxxxxx>:





I admire the very non-confrontational yet clear tone of the letter - I don't
think I'd be able to manage that tone on this issue. Thank you Jeff. 

 

I'm fine with the descriptions of the specific issue here, clearly setting
out that there are numerous specific issues not addressed in the GACs advice
etc. 

 

Like Mason, I'm not sure we should ask the GAC for its determination of
policy vs implementation, for a wide range of reasons. As Mason points out,
a decision being 'implementation' isn't necessarily grounds for excluding
policy making structures such as the GNSO from decision making. 

 

Regards

 

            David

 

 

 

On 06/12/2012, at 6:41 AM, Neuman, Jeff wrote:





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 /
<mailto:jeff.neuman@xxxxxxxxxxx> jeff.neuman@xxxxxxxxxxx  /
<http://www.neustar.biz/> www.neustar.biz

 

 

___________________________________________________________
Thomas Rickert, Rechtsanwalt
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