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

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

All,

I am fine with having the history in an appendix if someone can draft that up.  
With respect to the "misunderstanding" language, I am also fine with removing 
that language as well.

Jonathan, are we going to need a motion to approve the letter? I don't believe 
we do.  But, if we do, then we need to draft it by tomorrow to get it on the 
agenda, right?



Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs


From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Jonathan Robinson
Sent: Tuesday, December 11, 2012 6:45 AM
To: council@xxxxxxxxxxxxxx
Subject: RE: [council] Proposed Response to the GAC regarding November 28th 
Letter

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> 
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Thomas Rickert
Sent: 11 December 2012 09:41
To: David Cake
Cc: council@xxxxxxxxxxxxxx<mailto: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<mailto: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 / 
jeff.neuman@xxxxxxxxxxx<mailto:jeff.neuman@xxxxxxxxxxx>  / 
www.neustar.biz<http://www.neustar.biz/>


___________________________________________________________
Thomas Rickert, Rechtsanwalt
Schollmeyer &  Rickert Rechtsanwaltsgesellschaft m.b.H. (i.e. law firm)
Geschäftsführer / CEO: Torsten Schollmeyer, Thomas Rickert
HRB 9262, AG Bonn

Büro / Office Bonn:
Kaiserplatz 7-9, 53113 Bonn, Germany
Phone: +49 (0)228 74 898 - 0

Büro / Office Frankfurt a.M.:
Savignystraße 43, 60325 Frankfurt, Germany
Phone: +49 (0)69 714 021 - 56

Zentralfax: +49 (0)228 74 898 - 66

mailto: rickert@xxxxxxxxxxx<mailto:rickert@xxxxxxxxxxx>
skype-id: trickert
web: www.anwaelte.de<http://www.anwaelte.de>