[Gnso-igo-ingo-crp] Issues raised by Small discussion group concerning IGO and Red Cross identifiers

[George Kirikos]

Hi folks,

Continuing the analysis of the "Small Discussion group", there's a
post by Bruce Tonkin at:

http://mm.icann.org/pipermail/discussion-igo-rc/2017-May/000166.html

which is misleading that mailing list as to the claimed strength of
the protection for IGOs. If you actually read the text of the
legislation (not just the snippet he quoted), it goes on to say:

https://www.legislation.gov.au/Details/C2016C01053

"(3)  A person shall not be convicted of an offence against this
section in respect of the use of an abbreviation of the name of an
international organisation to which this Act applies if the use
occurred in such circumstances or in relation to such matters as to be
unlikely to be taken to imply any connexion with the organisation,
unless the prosecution proves that the use was intended to imply such
a connexion."

which reflects the limitations in Article 6ter 1(c).

http://www.wipo.int/article6ter/en/legal_texts/article_6ter.html

"The countries of the Union shall not be required to apply the said
provisions when the use or registration referred to in subparagraph
(a), above, is not of such a nature as to suggest to the public that a
connection exists between the organization concerned and the armorial
bearings, flags, emblems, abbreviations, and names, or if such use or
registration is probably not of such a nature as to mislead the public
as to the existence of a connection between the user and the
organization."

The Australian legislation then goes on to say:

(6)  Proceedings under this section shall not be instituted without
the consent in writing of the Attorney‑General.

so it's clear that the enforcement depends on the *government.* For
Tonkin to claim that this is "strong protection" in Australia is not
correct. It's the exact same protection as provided under Article
6ter. It's essentially Australia's actual implementation of Article
6ter, to fulfill their treaty obligations. It doesn't exceed those
obligations, it mirrors them exactly.

This illustrates why such closed groups, that have limited scrutiny,
are problematic, as they make false assumptions, and then fail to
grasp that those assumptions are false until they've wasted enormous
resources (and then they are unwilling to admit that their assumptions
are false, because they've invested so much time on them!).

You'll note that Tonkin's post generated several followups:

http://mm.icann.org/pipermail/discussion-igo-rc/2017-May/date.html

none of which have yet corrected the misleading assertion. Tonkin is
essentially repeating the false claim made by the OECD rep which
referenced Canada's legislation, which I already analyzed at point #1
of:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-April/000712.html

which failed to note the "excepted uses".

I hope that this will be brought to the attention of that small group,
lest they continue to be misinformed through material omissions.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/