[Discussion-igo-rc] External Legal advice on applicable local law for the protection of the legal rights of IGOs

[Bruce Tonkin]

Hello Phil,


>>  I believe that some US consumer protection laws also provide for private enforcement rights, although whether any might arguably be applicable to IGO names and acronyms is a different question.

In the US, are their federal consumer protection laws, or is it state based?   If it is state based - would be interesting to understand if they have some common elements that may relate to misleading and deceptive conduct.

>> If a legal inquiry is initiated I believe it should not only identify relevant laws but evaluate how common such statutes are across national jurisdictions and the extent to which they are similar in approach. 

Yes - that is exactly what I had in mind.   

>>  I know of no similar international agreements in such areas as consumer protection or unfair competition.

I assume there may be some agreements that are more regional or bi-lateral - e.g. trade agreements or the European Union.   I expect such agreements may cover unfair competition and intellectual property protection , but not sure about consumer protection.   I know though that WHOIS provisions are in some trade agreements with the USA.



>>  In closing, I would again caution that ICANN should think long and hard about setting the precedent of  providing any dispute resolution system as an alternative to judicial redress for any category of law other than trademark. Names are clearly a part of ICANN's remit, and the potential clash between domain names and trademarks justifies the existing RPMs. Such justification is arguably absent from other categories of laws.

Yes - ultimately we need to follow our bylaws and registry agreements in this area. 

I think the logical flow is something like this:

- the ICANN community develops policies concerning the registrations of second level domain names in gTLDs for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS

- consensus policies may relate to the resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names, but including where such policies take into account use of the domain names)

- ICANN must employ open, transparent and bottom-up, multistakeholder policy development processes that are led by the private sector (including business stakeholders, civil society, the technical community, academia, and end users), while duly taking into account the public policy advice of governments and public authorities.

- ICANN must carry out its activities in conformity with relevant principles of international law and international conventions and applicable local law


In this case we received public policy advice as it relates to the need for protections of the names and abbreviations of IGOs.     Where IGOs have a trademark, they can take advantage of the existing UDRP.   We have received information that many IGOs choose not to take advantage of trademark law - and in fact many take advantage of Article 6ter to stop others registering trademarks using their names.

We are then left with considering how we can protect IGO names and abbreviations that are not trademarks.   Hence I thought it would be useful to better understand what applicable local law there is that the ICANN Community could consider, as it doesn't appear there is any other international law to consider. 

Whether a separate dispute mechanisms is needed or some tweaks to the wording to the existing UDRP - I have no view - that is for the community to decide.   I just feel it would be useful to have the additional facts available to help guide the community's work.

Regards,
Bruce Tonkin