[council] RE: FOR REVIEW: IGO acronyms - differences between GNSO policy, GAC advice and the small group proposal

[Phil Corwin <psc@xxxxxxxxxxx>]

Mary:

Thanks to you and other staff for preparing the summary note. I am sure it will 
be helpful to participants in the GNSO call on this matter scheduled for this 
afternoon (my time).

I would point out that the CRP WG that I co-chair, along with Petter Rindforth, 
is in the final stages of preparing a preliminary report and recommendations 
that relate to the matters listed under III in the note, “CURATIVE RIGHTS 
PROTECTIONS – A COMPARISON”. The Preventative Protections listed under II are 
outside the scope of our WG.

There is, however, one common element in both II and III, in that the existing 
GAC advice calls for both the preventative and curative protections to be 
available ”at no cost or nominal cost only to the IGO”. The CRP WG took note of 
that language after it was conveyed by the GAC and engaged in a robust 
discussion, the conclusion of which was that the WG had no authority to either 
require providers of CRP services to give IGO complainants a discount on said 
services or provide them for free; or to require that ICANN subsidize such 
protections for IGOs.

However, we did make further inquiry of the GAC as to whether it considered the 
present pricing for UDRP and URS services (both of which are substantially less 
expensive than litigation) to fall into the category of nominal cost. 
Unfortunately, the response received from the GAC was equivocal and of little 
use to the WG in determining the parameters of the meaning of that GAC advice. 
(If you have time before today’s call you may wish to provide participants with 
a copy of that exchange.)

Some other comments on the Board letter of October 4th and accompanying IGO 
Small Group Proposal:

·         The letter states that “the Board has been notified that the small 
group has reached consensus on a proposal for a number of general principles 
and suggestions that it hopes will be acceptable to the GAC and the GNSO”. That 
phrase makes clear that the attached Proposal has not been endorsed by the 
Board or the GAC at this time, notwithstanding the closed door discussions 
between all three of those parties over the past two years.

·         The Board letter also states, “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.” In regard to that I would personally state the following—

First, it is the intent of the CRP WG to discuss the Board letter and Small 
Group Proposal as the first matter of business on its scheduled call this 
coming Thursday, October 13th.

Second, while the presentation of the Proposal is not timely, insofar as 
members of the Small Group have never joined the WG as members and have only 
participated in a very sporadic manner, and the Proposal arrives at a time when 
the WG has reached most final conclusions and is preparing its draft report and 
recommendations. Notwithstanding those factors,  its untimely arrival does not 
present great difficulty for the WG in that the specifics of the Proposal are 
quite similar to positions we have heard from IGO representatives (in their 
personal capacity) previously, and the WG has fully considered them.

·         The Board letter states 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”. That is the proper procedure in that it is 
clear, as noted above, that the GAC has not endorsed the Small Group Proposal 
and, further, it would be quite improper for the Board to take action on GAC 
advice on a matter (CRP) that a PDP WG is currently engaged in addressing. When 
the GNSO Council and ICANN community have an opportunity to review and comment 
upon the WG’s preliminary report and recommendations they should find them well 
reasoned and documented, and to afford considerable assistance to IGOs seeking 
to take curative action against an allegedly infringing/fraudulent or deceptive 
domain and associated website.

·         The staff note does not mention the first general principle that the 
IGO Small group states “should underpin the framework for any permanent 
solution concerning the protection of IGO names and acronyms in the domain name 
system”, with that principle being, “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”.

The CRP WG has extensively explored this matter and has reached a different 
conclusion --  that IGO rights holders seeking relief from identical or 
confusingly similar domains that have been registered and are being used in bad 
faith are not objectively different from trademark rights holders; and further 
finding that the easily obtained protections for IGO names and acronyms 
afforded by Article 6ter of the Paris Convention – that provide protection for 
those names and acronyms in the trademark law systems of every nation that has 
signed the Convention or that is a member of the WTO—can provide a sound basis 
for the standing of IGOs to initiate a URS or UDRP independent of trademark 
registration of the name or acronym.

·         While the Small Group Proposal is silent in regard to any underlying 
justification for its demand that IGOs be provided with a separate dispute 
resolution mechanism (that is, not the URS or UDRP), our interactions with IGO 
representatives revealed that the principal basis for that demand was the 
assertion of a very broad scope of sovereign immunity for IGOs. Because this 
question was so fundamental to the efforts of the WG, and because WG members 
possessed no independent expertise in this subject matter, we suspended our 
work for approximately one year in order to obtain nominal funding from ICANN 
and find a recognized expert in this field to provide the WG with guidance on 
whether there was any consensus view on the question of whether the “mutual 
jurisdiction” provision relevant to appeals of existing CRP mechanisms was at 
odds with the recognized scope of IGO immunity.

For my own part, had our legal expert told us that the consensus view was that 
the mutual jurisdiction provision conflicted with the recognized scope of IGO 
immunity I would have supported efforts to create an entirely new CRP solely 
for the use of IGOs. However, the report we received did not reach that 
conclusion.

·         Other than the demand for a separate CRP mechanisms, the report and 
recommendations from the CRP WG  will, in my view, meet the criteria set for 
the by the Small Group in regard to the targeting and available remedies of 
acceptable CR mechanisms.

·         The IGO Small Group Proposal makes no mention of the existing legal 
rights of domain registrants, an issue that the CRP WG has struggled with since 
its inception. It is well established that both the UDRP and URS are intended 
to be voluntary substitutes for available legal rights and not mandatory 
substitutes for them. The Small Group demand that “Decisions resulting from 
this[substitute]  mechanism shall be “appealable” through an arbitral process 
to be agreed” would strip domain registrants of their existing rights under 
various national laws. The CRP WG has concluded that, in the absence of clear 
consensus that IGOs enjoy broad and generally recognized sovereign immunity 
against being subject to such judicial appeal, it would be improper for ICANN 
to attempt to deprive registrants of existing legal rights. Further, the WG has 
further concluded that any such attempt might well be ineffective and likely 
rejected by a court in which a registrant sought to “appeal “ a CRP decision, 
as there is no reason why any national court (including those of the U.S.) 
would follow the dictates of a California non-profit corporation in regard to 
the exercise of such rights.

·         Finally, in regard to the concluding Next Steps section of the Small 
Group Proposal, I take personal exception to the second recommendation, which 
states “Subject to advice from the GAC and the GNSO, the GDD will consider 
adopting the amended proposal and instructing staff to work up the relevant 
implementation details for subsequent discussion and (as appropriate) 
approval”. That recommendation asserts a false equivalency between the roles of 
the GNSO and the GAC. The role of the GAC is to render advice. But the role of 
the GNSO is to develop and recommend policy to the ICANN Board, which is a  
much more robust role than the mere rendering of advice. The GNSO should 
vigorously reject any attempt to portray its role in the policymaking process 
as equivalent to that of the GAC as being contrary to relevant Bylaws 
provisions and at odds with the entire concept of the multistakeholder model.

Further, it is the responsibility of the GAC and its constituent members, 
including IGOs, to participate in PDPs that relate to subject matters of 
concern rather than to weigh in at the 11th hour with proposals that are known 
to be at substantial variance with the preliminary conclusions of the relevant 
WG.

Finally, any GDD action on these matters should be undertaken only when the 
Board takes final action on relevant GNSO policy recommendations and related 
GAC advice. It would be completely improper and unprecedented for the GDD to 
consider adopting the Small Group Proposal  at this time, as the very existence 
of the CRP WG demonstrates that affording expanded CRP protections to IGOs 
raises serious policy issues and cannot be considered a mere implementation 
detail of the new gTLD program (noting further that creation of a separate CRP 
for legacy gTLDs can only be accomplished through new Consensus Policy, and 
that attempting to foist such process on registrants in legacy gTLDs via other 
means would likely face substantial legal challenge).  To the extent that the 
Next Steps section can be read as recommending near-term action on the Small 
Group Proposal without full community consideration of the forthcoming 
preliminary report and recommendations of the CRP WG it should be soundly 
rejected by the GNSO, the Board, and ICANN’s multistakeholder community as 
takin such action would fundamentally undermine ICANN’s policymaking process.

Of course, as noted above, the Board has already stated that it “will not take 
action with respect to GAC advice on curative rights protections for IGOs prior 
to the conclusion of the GNSO’s PDP”; the GAC has not endorsed the Small Group 
Proposal; and the natural meaning of the phrase “conclusion of the GNSO’s PDP” 
would encompass community comment on a preliminary report and recommendations 
as well as Council consideration of and action on a final report and 
recommendations and the transmission of its own recommendations for Board 
consideration.

I hope you find these comments useful, and I look forward to today’s call.

Best to all, Philip


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

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

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Mary Wong
Sent: Tuesday, October 11, 2016 1:58 AM
To: council@xxxxxxxxxxxxxx
Subject: [council] FOR REVIEW: IGO acronyms - differences between GNSO policy, 
GAC advice and the small group proposal

Dear Councilors,

At the request of the Chairs, staff has put together the attached note that 
attempts to summarize the differences between the adopted GNSO policy 
recommendations, GAC advice received, and the recent small group proposal 
regarding IGO acronyms protection. The document includes a tabular comparison 
of these differences as well as some notes that we hope will be helpful to your 
discussions and analysis.

As the IGO-INGO Curative Rights Working Group is finalizing its preliminary 
recommendations regarding dispute resolution for IGOs, and as Phil has 
summarized in email (below) the status of those Working Group deliberations, we 
have not included these in the document.

Thanks and cheers
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


From: <owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>> on 
behalf of "James M. Bladel" <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>
Date: Thursday, October 6, 2016 at 22:00
To: Phil Corwin <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>, 
"council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>" 
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: Re: [council] FW: Board reply letter on IGO/RC issues and proposal on 
IGO acronyms protection from the IGO "small group"

Phil –
Thank you for the quick turn on this analysis.

Councilors –
Recognizing that this proposal came after our agenda deadline, but please try 
to review it if you have a chance before our next call.  If possible, we will 
add it as a discussion item under AOB.

Thank you,

J.


From: <owner-council@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>> on 
behalf of Phil Corwin <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>
Date: Thursday, October 6, 2016 at 17:20
To: GNSO Council List <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] FW: Board reply letter on IGO/RC issues and proposal on IGO 
acronyms protection from the IGO "small group"

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
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

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

From: owner-council@xxxxxxxxxxxxxx<mailto: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<mailto:bruce.tonkin@xxxxxxxxxxxxxxxxxx>; Markus 
Kummer; Becky Burr; board-ops-team@xxxxxxxxx<mailto: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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