[council] RE: Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group"

[Phil Corwin <psc@xxxxxxxxxxx>]

For the benefit of Board members, I have just sent the following email to 
members of the GNSO Council:


Fellow Councilors:

As Co-Chair of the Working Group reviewing Curative Rights Processes (CRP) for 
International Intergovernmental Organizations (IGOs), I feel it incumbent to 
provide my initial reaction to this Board letter. In doing so I note that 
transmission of the letter has been delayed until after the completion of the 
IANA transition, and that the post-transition role of governments within ICANN 
was a central controversy surrounding the transition.

The CRP WG has labored for the last two years to develop a report and 
recommendations that are objective and based in fact and relevant law. In order 
to assure that our conclusions were sound, we suspended our work for nearly one 
year in order to locate and secure the services of a legal expert on the 
central subject of the generally recognized scope of IGO sovereign immunity.

During this period we continually urged members of the GAC, and IGOs, to 
participate in our WG. That participation was so sporadic that it amounted to a 
near-boycott, and when IGO representatives did provide any input they stressed 
that they were speaking solely as individuals and were not providing the 
official views of the organizations that employed them. Of course, why should 
they participate in the GNSO policy processes when they are permitted to pursue 
their goals in extended closed door discussions with the Board, and when the 
Board seeks no input from the GNSO in the course of those talks?

Turning to the relevant substance of the Board letter and the attached IGO 
“Small Group” Proposal, I note that this Proposal statement is demonstrably 
incorrect—
The IGO-GAC-NGPC small group that has been discussing the topic of appropriate 
IGO protections, based on the NGPC’s initial proposal of March 2014, agree that 
the following general principles should underpin the framework for any 
permanent solution concerning the protection of IGO names and acronyms in the 
domain name system:

(1)    The basis for protection of IGO acronyms should not be founded in 
trademark law, as IGOs are created by governments under international law and 
are in an objectively different category of rights-holders; (Emphasis added)

In fact, our WG found that many IGOs have trademarked their organizational 
names and acronyms and have successfully utilized the UDRP. Further, and more 
relevant, Article 6ter of the Paris Convention provides IGOs with protection of 
their names and acronyms within the trademark law systems of all Convention 
signatories, as well as all members of the World Trade Organization, with such 
protection available through a simple registration procedure with WIPO. So, 
contrary to the statement quoted above, the basis for IGO acronym protections 
has already been linked to trademark law.

Turning to the relevant portion of the IGO Proposal---
                2. Dispute Resolution Mechanism
• ICANN will facilitate the development of rules and procedures for a 
separate(i.e., separate from the existing UDRP) dispute resolution mechanism to 
resolve claims of abuse of domain names that are registered and being used in 
situations             where the registrant is pretending to be the IGO or that 
are otherwise likely to result in fraud or deception, and (a) are identical to 
an IGO acronym; (b) are confusingly similar to an IGO acronym; or (c) contain 
the IGO acronym.
• Decisions resulting from this mechanism shall be “appealable” through an 
arbitral process to be agreed.

--While our WG is in the process of vetting our preliminary report and 
recommendations, because it has operated transparently it is no secret that it 
has decided against creation of a new DRP for the sole and exclusive use of 
IGOs because there is no demonstrated need to do so. Further, as regards 
availability of arbitration for appeals from initial CRP decisions, while that 
matter is still being finalized by the WG, to the extent it is premised upon 
broad claims of IGO sovereign immunity such claims are not generally supported 
by existing legal views according to the report received from our retained 
expert on international law.

Here are some other  preliminary observations:

·         The timing of this letter, and the specific DRP recommendations 
contained in the attached Proposal, are likely to complicate final agreement 
within the WG on our preliminary report and recommendations. IGOs, having 
chosen not to meaningfully participate in the WG, are now disrupting its final 
stage.

·         It appears that the proposal we have just received has not been 
endorsed by the Board, but is simply the IGO small group’s  “consensus on a 
proposal for a number of general principles and suggestions that it hopes will 
be acceptable to the GAC and the GNSO”. Although these IGOs  have not 
meaningfully participated in our WG, they are known to have monitored our work 
closely enough that they surely know that these proposals stand in stark 
opposition to the WG’s preliminary conclusions.

Finally, in regard to this statement in the Board letter—
        The Board’s understanding is that those aspects of the proposal that 
concern curative rights protection may be referred by the GNSO Council to the 
GNSO’s Working Group that is
conducting the ongoing Policy Development Process (PDP) on IGO-INGO Access to 
Curative Rights Mechanisms. We understand further that the Working Group is 
currently discussing
preliminary recommendations that it intends to publish for public comment soon, 
in the form of an Initial Report. We therefore hope that the presentation of 
the attached proposal is timely,
and will be fully considered by the Working Group regarding the specific topic 
of enabling adequate curative rights protections for IGO acronyms, and in 
conjunction with the GNSO
Council’s management of the overall process for possible reconciliation of GNSO 
policy with GAC advice. We also acknowledge, in line with prior correspondence 
between the Board’s New
gTLD Program Committee and the GNSO Council, that the Board will not take 
action with respect to GAC advice on curative rights protections for IGOs prior 
to the conclusion of the
GNSO’s PDP.
- I appreciate the Board’s assurance that it will take no action with respect 
to GAC advice on CRP for IGOs until the current PDP is concluded. I further 
note that ICANN staff has already transmitted the Board letter and attached IGO 
Proposal to all members of the CRP WG and, following consultation with my 
Co-Chair, it will likely be the main topic of discussion at the WG’s next 
meeting on October 13th.  I can assure you that the Proposal will be fully 
considered by the WG. However, given the fact that the Proposal is at nearly 
complete odds with the WG’s preliminary conclusions, and that the IGOs chose 
not to participate in the WG in any significant way and thereby take advantage 
of the opportunity to make their case to those community volunteers who have 
labored in good faith on this project for more than two years, it is most 
unlikely that the WG will now abandon its own conclusions and adopt those of 
the IGOs.

The Board letter closes with the observation that it wants to “ reiterate our 
belief that the most appropriate approach for the Board in this matter is to 
help to facilitate a procedural way forward for the reconciliation of GAC 
advice and GNSO policy prior to the Board formally considering substantive 
policy recommendations”. With all respect, what has occurred seems a thoroughly 
inappropriate approach for reconciling GAC advice and GNSO policy. This Council 
has undertaken extraordinary steps to conduct outreach to the GAC and to strive 
to integrate it within the GNSO policy development process, and much of that 
progress is at risk of being undone by how this matter is ultimately decided.

What is at stake in this matter goes far beyond the relatively rare instance in 
which a domain registrant infringes upon the name or acronym of an IGO and the 
IGO seeks relief through a CRP. The larger issue is whether, in a 
post-transition ICANN, the GAC and the UN agencies that comprise a large 
portion of IGOs, will participate meaningfully in GNSO policy activities, or 
will seek their policy aims by bypassing the ICANN community and engaging in 
direct, closed door discussions with the Board. Therefore, how the GNSO and the 
Board ultimately resolve this matter will have implications far beyond the 
narrow issue of available CRPs for IGOs. If IGOs are successful in attaining 
their policy aims through the course of action they have pursued it will send a 
most unfortunate message that will be detrimental to the functioning of an 
ICANN in which community members representing business, technology, and civil 
society are supposed to have the lead role in setting policy,  and in which  
governments are supposed to  have a secondary, advisory role.

Sincerely,
Philip S. Corwin


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Mary Wong
Sent: Thursday, October 06, 2016 5:03 PM
To: GNSO Council List
Cc: Steve Crocker; Chris Disspain; bruce.tonkin@xxxxxxxxxxxxxxxxxx; Markus 
Kummer; Becky Burr; board-ops-team@xxxxxxxxx
Subject: [council] Board reply letter on IGO/RC issues and proposal on IGO 
acronyms protection from the IGO "small group"

Dear Councilors,

Please find attached the ICANN Board’s reply to the GNSO Council’s letter of 31 
May 2016 on the topic of protections for IGOs and the Red Cross. The letter 
also includes the final proposal on IGO acronyms protection that was worked on 
by the IGO “small group” of IGO, Board and GAC representatives, facilitated by 
ICANN staff as appropriate.

We will also transmit a copy of this to the co-chairs of the GNSO IGO-INGO 
Curative Rights Protections PDP Working Group and the GAC.

Best regards,
Mary


Mary Wong
Senior Policy Director
Internet Corporation for Assigned Names and Numbers (ICANN)
Email: mary.wong@xxxxxxxxx<mailto:mary.wong@xxxxxxxxx>
Telephone: +1-603-5744889


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