[council] RE: FOR REVIEW: IGO acronyms - differences between GNSO policy, GAC advice and the small group proposal
Phil Corwin
psc at vlaw-dc.com
Tue Oct 11 15:39:26 UTC 2016
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 at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Mary Wong
Sent: Tuesday, October 11, 2016 1:58 AM
To: council at gnso.icann.org
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 at icann.org<mailto:mary.wong at icann.org>
Telephone: +1-603-5744889
From: <owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org>> on behalf of "James M. Bladel" <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>
Date: Thursday, October 6, 2016 at 22:00
To: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>, "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
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 at gnso.icann.org<mailto:owner-council at gnso.icann.org>> on behalf of Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Thursday, October 6, 2016 at 17:20
To: GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
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 at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of Mary Wong
Sent: Thursday, October 06, 2016 5:03 PM
To: GNSO Council List
Cc: Steve Crocker; Chris Disspain; bruce.tonkin at melbourneit.com.au<mailto:bruce.tonkin at melbourneit.com.au>; Markus Kummer; Becky Burr; board-ops-team at icann.org<mailto:board-ops-team at icann.org>
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 at icann.org<mailto:mary.wong at icann.org>
Telephone: +1-603-5744889
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