[Discussion-igo-rc] External legal advice on 6ter

[Jonathan.PASSARO at oecd.org]

Dear Bruce,

My apologies for the delay since my last email, as it took me a few days to consult with the other members of the "core group" of IGOs (UN, UPU, WHO, WIPO).

First, allow me to take the opportunity to correct a point in your last email, sent on 30 April at 02:14 CEST. You stated that "Where IGOs have a trademark, they can take advantage of the existing UDRP." As we have discussed at length, the mutual jurisdiction provision of the UDRP in fact prevents IGOs from using the UDRP. For more in-depth explanations regarding why the mutual jurisdiction provision is incompatible with the immunities we enjoy as intergovernmental organisations, I invite you to consult the comments numerous IGOs provided on this point in the context of the ongoing PDP (including e.g. OECD<https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/pdfQMY4Efq7Aa.pdf>, UN<https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/pdf28tKc4pChA.pdf>, World Bank<https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/pdfzzHOSpXFGP.pdf>).

Second, regarding the consultation of a legal expert, my IGO colleagues share the OECD's concern that such an exercise will significantly prolong what has already been an extensive and resource-intensive process. In addition, our past experiences within ICANN make us deeply concerned that such an exercise risks being manipulated against IGOs' interests, from the formulation of the research question, the selection of the expert and the choice of jurisdictions to the potential cherry-picking of language from the expert's conclusions once her report is released. We are grateful that you are trying to start a new, less contentious chapter in this saga but hope that you understand why we are reticent to embark down this path.

In that regard, if you do decide to proceed, we would naturally expect that the IGOs would be involved in (1) the formulation of the research question(s); (2) the selection of the expert (3) the terms of reference guiding the expert's work; and (4) the choice of jurisdictions (please note already that a survey of five jurisdictions out of the 177 States Parties to the Paris Convention seems unlikely to give any kind of accurate idea about the scope of mechanisms States use to protect IGO acronyms).

Kind regards,

Jon
[logo_mail_uk]<http://www.oecd.org/>

Jonathan Passaro
Legal Adviser
Directorate for Legal Affairs



2, rue André Pascal - 75775 Paris Cedex 16
Tel: +33 1 45 24 14 73
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