[Gnso-igo-ingo-crp] GAC LA Communique on IGO-INGO Curative Rights WG

Wed Oct 22 17:17:25 UTC 2014

All,
I agree with Phil’s message below, and think the GAC has strayed into the details of policy-making rather than the high level input of policy advice it normally gives. While the GAC may prefer a new dispute resolution mechanism, the fact is that creating one is a very difficult task, and probably unnecessary. As the US Trademark Office and other trademark offices have methods for reviewing IGO Certifications alongside pending trademark registrations (to evaluate overlap of services and confusion of names), so too could such a process, if appropriate, be fairly straightforward to adopt into the UDRP. But to create a standalone new process – yikes!

As many of you know, I served on the final drafting team of the UDRP – and would not like to repeat the experience.
Best,
Kathy (Kleiman)

From: gnso-igo-ingo-crp-bounces at icann.org [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Sunday, October 19, 2014 2:25 PM
To: gnso-igo-ingo-crp at icann.org
Subject: [Gnso-igo-ingo-crp] GAC LA Communique on IGO-INGO Curative Rights WG
Importance: High

WG members:

On October 16th the GAC issued a Communique that is available at https://gacweb.icann.org/download/attachments/27132037/Los%20Angeles_GAC%20Communique_Final.pdf?version=1&modificationDate=1413479079702&api=v2

On pp.6-7 of the Communique the following language relevant to the task of our WG appears:

3.       Protection of Inter-‐Governmental Organisation (IGO) Names and Acronyms
a.       The GAC reaffirms its advice from the Toronto, Beijing, Durban, Buenos Aires, Singapore and London Communiqués regarding protection of IGO names and acronyms at the top and second levels, as implementation of such protection is in the public interest given that IGOs, as created by governments under international law, are objectively different right holders; namely,
i.      Concerning preventative protection at the second level, the GAC reminds the ICANN Board that notice of a match to an IGO name or acronym to prospective registrants, as well as to the concerned IGO, should apply in perpetuity for the concerned name and acronym in two languages, and at no cost to IGOs;
ii.      Concerning curative protection at the second level, and noting the ongoing GNSO PDP on access to curative Rights Protection Mechanisms, the GAC reminds the ICANN Board that any such mechanism should be at no or nominal cost to IGOs; and further, in implementing any such curative mechanism,

b.       The GAC advises the ICANN Board:

i.      That the UDRP should not be amended; welcomes the NGPC's continued assurance that interim protections remain in place pending the resolution of discussions concerning preventative protection of IGO names and acronyms; and supports continued dialogue between the GAC (including IGOs), the ICANN Board (NGPC) and the GNSO to develop concrete solutions to implement long-‐standing GAC advice. (Emphasis added)

4.       Protection of Red Cross/Red Crescent Names
The GAC welcomes the decision of the New gTLD Program Committee (Resolution 2014.10.12.NG05) to provide temporary protections for the names of the International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies, and the 189 National Red Cross and Red Crescent Societies. The GAC requests the ICANN Board and all relevant parties to work quickly to resolve the longer term issues still outstanding.

In regard to the highlighted portions of the communique, the GAC makes clear that it wants any new curative RPM to be available to IGOs at “no or nominal cost”. This leaves open the question, should our WG choose to recommend the creation of a new DRP, of whether the current costs of the URS and UDRP are viewed as falling within the “nominal” range – and, if deemed by the GAC to exceed such range, what party should assume the financial cost of subsidizing access to any new DRP by IGOs.

In regard to the GAC’s statement that “the UDRP should not be amended”, in my personal opinion this appears to be an overreaching attempt to foreclose the possibility that this WG will determine that the UDRP should in fact be amended to better accommodate the legitimate rights of IGOs, and that a new curative rights process is not advisable, and as such should be rejected at this time -- as it would only leave the option of creating a new curative RPM. ICANN and the GNSO  have responded to the GAC’s concerns in regard to IGOs by establishing this WG, but we should be free to pursue its work as its members deem best without intervening attempts by the GAC to direct us to a predetermined outcome.

Such intervention is manifestly different from the type of participation that would be welcome from IGOs and GAC members, which is contributing to our factual database and interaction in our ongoing and open dialogue. In this regard, when the Board met with the GNSO Council in Sunday, October 12th the activities of this WG were highlighted and there was dialogue concerning the intervention of Board members to encourage GAC and IGO participation. The transcript of that session is not yet available at http://la51.icann.org/en/schedule/sun-gnso-working and I would therefore solicit the assistance of ICANN staff in securing it so that we can review that discussion and follow up on it.

In conclusion, it would be useful to have feedback from WG members in regard to the relevant portions of the GAC Communique and in particular as to whether we should prepare any reply in regard to its substance as well as to solicit the participation of IGOs and GAC members in our work.

Thanks and best regards,
Philip Corwin, Co-Chair

Philip S. Corwin, Founding Principal
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"Luck is the residue of design" -- Branch Rickey

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