[council] Motion to Recommend Certain Oritections for RCRC and IOC Names and the Top Level in New gTLDs

Thu Mar 8 06:02:02 UTC 2012

All,

Sorry for the delay in my response, but we just closed the most recent consensus call on the Drafting Team's recommendations before responding.  Due to timing issues, I did have to present the motion to the council before the completion of the consensus call.  It was not the optimal way to do this I confess, but in this situation we did the best we could with the compressed timelines.  I was fairly comfortable based on the discussions of the group that we would have Consensus or Strong Support when I presented the motion and always intended to report that to the Council in Costa Rica this weekend.

I believe the results indicate that we do have a Consensus of the Drafting Team that supports the substance of the Recommendations in the motion.  Please note that "Consensus" does not mean unanimity and as there was one group that voted no.  Therefore, we do not have Unanimous Consensus support. Although participants in the Drafting Team were participating as individuals, many of the individuals did consult with the respective groups in arriving at their decision.   In considering whether there was consensus, since there were some constituencies/groups that had multiple members, I have grouped them together for fairness purposes.  I did not want, for example, to weigh the opinions of those from the International Olympic Committee more heavily than the person representing the registries simply because the IOC had 3 representatives and the registries only 1 .  The Breakdown was as follows:

RySG - Yes (Gomes)
IPC - Yes (Evans, Shatan)
ISP - Yes (Novoa)
BC - Yes (DelBianco)
NCUC - No (Liddicoat, Komaitis, Dammak)
NCA Appointes - Yes (Ajayi, Rickert)
ALAC - Yes (Greenberg)
Red Cross - Yes (Hughes, Hankins, Lanord)
IOC - Yes (Bikoff, Malancharuvil, Heasley)

**RrSG - The Registrars did not participate in any of the discussions, e-mail archives or consensus call as there were no registrar members on the Drafting Team.

Note 1:  The Drafting Team was only asked to agree or not agree with the substance of the recommendations and not on the process that will or wont be followed by the GNSO Council in voting on the recommendations.  They were not asked, for example to opine on (i) whether the initial Board Resolution was the right one, (ii) whether we needed to provide more rationale on why to protect the IOC/RC names, (iii), whether there should or should not be additional comment periods, etc.  That is the job of the Council to evaluate.  The Drafting Team was asked only to respond to the substance of the GAC proposal and present its advice to the GNSO Council.

Note 2:  The NCUC members of the DT voted no to the recommendations for the following reasons:

a)       Ms. Liddicoat stated:  "My reasons are because the recommendations are not the best option for implementing the Board decision as set out in the Applicant Guidebook, go further than matters of "implementation" and would secure extended protections beyond what is reasonable (including language protections in recommendation 2 which are outside the scope of the Board decision). Please note that despite not agreeing with some of the options under DT discussion (and the motion proposed) I have nonetheless worked in a spirit of cooperation to assist discussion of whether the options are workable"

b)      Mr. Komaitis stated:  "On the recommendation itself (1), I believe there is simply not enough justification in going beyond the protection the Board has already included in the Applicant Guidebook and I am, in particularly, uneasy with the various obstacles that this recommendation creates for other legitimate rights owners (Greek communities, other trademark owners, etc.). On the issue of which languages protection should extend to, I believe that our point of reference should be the existing international legal instruments and that this group should not accept an arbitrary list compiling various national laws. Finally, I think that given the complexity and potential impact these recommendations may have, at a first instance these protections should not be extended to all future rounds and should be the subject of a review."

c)       Mr. Dammak stated his non-support was based on the same rationale as Mr. Komaitis and Ms. Liddicoat.
Note 3:  As the Chair of the Drafting Team, I did not participate in the Consensus call.
Please let me know if you have any questions.  I will be happy to address them this weekend.
Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs

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From: Stéphane Van Gelder [mailto:stephane.vangelder at indom.com]
Sent: Wednesday, March 07, 2012 6:20 AM
To: Joy Liddicoat; Neuman, Jeff
Cc: council at gnso.icann.org GNSO
Subject: Re: [council] Motion to Recommend Certain Oritections for RCRC and IOC Names and the Top Level in New gTLDs

Thanks Joy.

Jeff, the points Joy raises require some further explanations I think. Your motion is asking the Council to approve recommendations. Whenever the Council receives such a request, it is with the understanding that the DT has adopted the recommendations as formal. If this is not the case here, perhaps the DT has more work to do and this motion needed to be introduced now to beat the deadline and that is fine, but it does require some more info I think.

Can you comment please?

Stéphane

Le 6 mars 2012 à 23:55, Joy Liddicoat a écrit :

Dear Jeff ,
I appreciate you taking the initiative in relation to this motion, however, I would point out, as a member of the Drafting Team, that the Drafting Team has not yet agreed how it will report to the Council on its work (including the range of options that were considered) and neither have we agreed to propose these recommendations. I appreciate the urgency with this task and your work, but I feel strongly that this motion may be seen as pre-determining the outcome of our work and the public comment period.
I just think Council should be aware of this before our meeting, which I am looking forward to
Kind regards
Joy

From: owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of Neuman, Jeff
Sent: Wednesday, 7 March 2012 3:22 a.m.
To: council at gnso.icann.org<mailto:council at gnso.icann.org> GNSO
Subject: [council] Motion to Recommend Certain Oritections for RCRC and IOC Names and the Top Level in New gTLDs

All,

In order to get this on the agenda by the deadline, here is a motion I have crafted on the adoption of the DT recommendations.  The wording for Recommendation 2 will change over the week to reflect the fact that we have received the list from the IOC (and translations) and hopefully the Red Cross by the time we actually hold the vote.  Other than that, the substance is the same.

Happy to take comments on this.

*************************************************************************************

MOTION TO  RECOMMEND TO THE BOARD A SOLUTION TO PROTECT CERTAIN RED CROSS/RED CRESCENT (RCRC) AND INTERNATIONAL OLYMPIC COMMITTEE (IOC) NAMES AT THE TOP LEVEL IN NEW GTLDS

Whereas, the Board Resolution 2011.06.20.01, authorized "the President and CEO to implement the new gTLD program which includes . . . incorporation of text concerning protection for specific requested Red Cross and IOC names for the top level only during the initial application round, until the GNSO and GAC develop policy advice based on the global public interest, . . ." (http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm)

Whereas, the IOC/RC Drafting Team established by the GNSO Council has considered a number of different options with respect to protections of both the IOC and the RCRC terms at the top level and has proposed a solution  to modify the ICANN staff's implementation of the Board Resolution as reflected in the Applicant Guidebook dated January 12, 2012 <LINK>;

Whereas, the IOC/RC Drafting Team has collaborated with the Government Advisory Committee (GAC) during its deliberations in an attempt to identify a solution that addresses GAC concerns,;
Whereas, this proposed solution was posted for public comment on 2 March 2012 on an expedited basis as a matter of urgency in order to enable the Board to consider its adoption for the first round of new gTLD applications, which is scheduled to close on 12 April 2012;

Whereas, therefore, the IOC/RC Drafting Team recommends that the GNSO Council adopt this proposed solution as a recommendation for Board consideration and adoption at its meeting in Costa Rica for the application period for the first round of new gTLD applications'.

NOW THEREFORE, BE IT:

Resolved, that the GNSO Council adopts the IOC/RC Drafting Team's three recommendations as described in its Proposal for the protection of IOC and RCRC names at the top level as provided inhttp://gnso.icann.org/issues/ioc-rcrc-proposal-02mar12-en.pdf; namely:

Recommendation 1:    Treat the terms set forth in Section 2.2.1.2.3 as "Modified Reserved Names," meaning:

a)               The Modified Reserved Names are available as gTLD strings to the International Olympic Committee (hereafter the "IOC"), International Red Cross and Red Crescent Movement (hereafter "RCRC") and their respective components, as applicable.

b)               Applied-for gTLD strings, other than those applied for by the IOC or RCRC, are reviewed during the String Similarity review to determine whether they are similar to these Modified Reserved Names. An application for a gTLD string that is identified as confusingly similar to a Modified Reserved Name will not pass this initial review.

c)               If an application fails to pass initial string similarity review:

                                            i.                        And the applied-for TLD identically matches any of the Modified Reserved Names (e.g., ".Olympic" or ".RedCross"), it cannot be registered by anyone other than the IOC or the RCRC, as applicable.

                                          ii.                        If the applied-for TLD is not identical to any of the Modified Reserved Names, but fails initial string similarity review with one of Modified Reserved Names, the applicant may attempt to override the string similarity failure by:

1.      Seeking a letter of non-objection from the IOC or the RCRC, as applicable; or

2.      If it cannot obtain a letter of non-objection, the applicant must:

a.      claim to have a legitimate interest in the string, and demonstrate the basis for this claim; and
b.      explain why it believes that the new TLD is not confusingly similar to one of the protected strings and makes evident that it does not refer to the IOC, RCRC or any Olympic or Red Cross Red Crescent activity.

3.      A determination in favor of the applicant under the above provision (ii)(2) above would not preclude the IOC, RCRC or other interested parties from bringing a legal rights objection or otherwise contesting the determination.

4.      The existence of a TLD that has received a letter of non-objection by the IOC or RCRC pursuant to (ii)(1), or has been approved pursuant to (ii)(2) shall not preclude the IOC or RCRC from obtaining one of the applicable Modified Reserved Names in any round of new gTLD applications.

Recommendation 2:    Protect the IOC/RCRC Terms in as many Languages as Feasible

            The GAC has proposed that the IOC and RCRC "names should be protected in multiple languages-all translations of the listed names in languages used on the Internet...The lists of protected names that the IOC and RC/RC have provided are illustrative and representative, not exhaustive."  Although the Drafting Team agrees with the notion that the lists provided by the IOC and RCRC were illustrative, protecting the terms in every language on the Internet is not a standard that the Drafting Team believes is feasible to achieve.  While it is true that the list of languages can be expanded, we recognize that in order to perform a String Similarity Review (as recommended above), a definitive objective list of languages must be created.  It is the Drafting Team's understanding that representatives from the IOC and RCRC are working on the creation of that definitive list and should be able to present that to the Drafting Team by no later than the ICANN Meeting in Costa Rica.  If such a list can be produced, the Drafting Team may recommend the use of that list as a substitute to that currently in the Applicant Guidebook.

            In addition, the Drafting Team also notes that even in the unlikely event that a third party applies for an IOC or RCRC term in a language that was not contained on the list, the IOC or RCRC, as applicable, may still file an applicable objection as set forth in the Applicant Guidebook.

Recommendation 3:    Protections should apply for all future rounds, but may be reviewed after the first round.

            In its proposal, the GAC has recommended that the protections for the IOC and RCRC should not just apply during the first round of new gTLDs, but should be a permanent protection afforded for all subsequent rounds.  Although, the Drafting Team has not spent a lot of time discussing this topic, it does agree with the notion that it is making this recommendation as one intended to apply in all future rounds, but also recognizes that like all other aspects of the new gTLD program, these protections may be reviewed by the ICANN community should it desire to do so.

Resolved, that the GNSO submits this proposed solution for Board consideration and adoption at its 16 March 2012 meeting in Costa Rica as a recommended solution to implement Board Resolution 2011.06.20.01 for implementation in the first round of new gTLD applications.

Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
21575 Ridgetop Circle, 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/>
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