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

[Neuman, Jeff]

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 at neustar.biz<mailto:jeff.neuman at neustar.biz>  / www.neustar.biz<http://www.neustar.biz/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/council/attachments/20121205/cea4106c/attachment.html>