ALAC STATEMENT ON THE RESERVATION OF OLYMPIC AND RED CROSS NAMES IN THE GTLD APPLICATION PROCEDURE:
The ALAC notes with concern the recent activities of the ICANN Board, its staff, and the GNSO regarding the reservation of domain names related to the Olympic and Red Cross movements. We object to the poor precedents these activities set forward both on substance and on process:
On substance, we see no substantial reason to afford to the Red Cross and the International Olympic Committee protections not available to other rights holders. Substantial objection procedures were put in place regarding the gTLD program, well capable of addressing all concerns about confusion and misuse. ICANN’s Governmental Advisory Committee (GAC), which has raised the concerns about these names, indeed has its own hard-won objection mechanisms in place.
Moreover, there are many in the At-Large Community who believe specifically that specially entrenched protection of olympic-related names is against the global public interest. We note that many legitimate uses of the word “olympic” and its derivatives are used for airlines, cameras, restaurants, paint, and numerous businesses around the world with no connection to the Olympic athletic movement or the IOC. These businesses are not currently seen to be confusing with the olympic movement, and we believe that needless restriction on these names -- beyond what already exists -- is publicly harmful.
On process, it is regrettable to see the domain naming policy (a hard-bargained consensus amongst many stakeholders) being overridden as a result of a bilateral engagement by the ICANN Board. We accept that the GAC, in advancing its concerns over these names, was performing its role according to its members’ wishes. However, the ICANN Board’s imposition of these wishes upon the community without prior consultation demonstrates numerous flaws and poor precedents:
- It is our understanding that the scope given the GNSO Drafting Team, in debating this matter, precluded it from rejecting outright the proposed changes because the Board had already forced the matter. The Drafting Team was left in a position of refining -- and indeed legitimizing -- a Board directive that many community members thought to be objectionable outright;
- The overriding of broad consensus-based policy based on a bilateral negotiation calls into question ICANN’s publicly expressed commitment to maintaining (and indeed strengthening) its “multi-stakeholder model”. How can ICANN's multi-stakeholder model claims be trusted when the community consensus can be so easily overridden due to perceived political expediency?
- The late date of this activity, changing the Applicant Guidebook so long after its “final” version was published, reduces public confidence and destabilizes the application process
- Why is this only about generic names? That is, why would “co.redcross” be subject to pre-restriction but “redcross.co” not? The uneven and unequal application of such a demand is the source of both instability and confusion. The debate on such policy should not be limited to the GNSO, since it is an issue affecting all domain names.
We note many of our concerns about this process have been expressed in Kurt Pritz’s March 2 letter to the GNSO Drafting Team. We believe, though, that rather than simply requesting further details and refinement, staff's concerns call into question the value of the entire initiative.
In view of the above, the ALAC specifically advises and requests the ICANN Board to reconsider its directions regarding the Red Cross and Olympic names as being ultimately against the global public interest. This matter should be reviewed with the purpose of giving the ICANN Board guidance on the global public interest related to making changes to previously-approved multi-stakeholder consensus. ALAC further advises the ICANN Board to leave the Applicant Guidebook unmodified in this regard . As the body mandated by ICANN to represent the interests of Internet end-users around the world, we believe that this initiative damages the credibility of ICANN’s multi-stakeholder model without providing substantial end-user benefit, but has the effect of creating new potential sources of public confusion and instability.
8 Comments
Cintra Sooknanan
Hi Evan,
Thanks for the draft, here it is with some minor typo and semantic corrections:
DRAFT ALAC STATEMENT ON THE RESERVATION OF OLYMPIC AND RED CROSS NAMES IN THE GTLD APPLICATION PROCEDURE:
The ALAC notes with concern the recent activities of the ICANN Board, its staff, and the GNSO regarding the reservation of domain names related to the Olympic and Red Cross movements. We object to the poor precedents these activities set forward both on substance and on process:
On substance, we see no substantial reason to afford to the Red Cross and the Olympic movements protection not available to other rights holders. Substantial objection procedures were put in place regarding the gTLD program, well capable of addressing all concerns on confusion and misuse. ICANN’s Governmental Advisory Committee (GAC), which has raised the concerns about these names, indeed has its own hard-won objection mechanisms in place.
Moreover, there are many in the At-Large Community who believe specifically that specially entrenched protection of olympic-related names is against the global public interest. We note that many legitimate uses of the word “olympic” and its derivatives are used for airlines, cameras, restaurants, paint, and numerous other businesses around the world with no connection to the Olympic athletic movement or the IOC. These businesses are not currently seen to be confused with the olympic movement, and we believe that needless restriction on these names (beyond what already exists) is publicly harmful.
On process, it is regrettable to see the domain naming policy (that was a hard-bargained consensus amongst many stakeholders) being overridden as a result of a bilateral engagement by the ICANN Board. We accept that the GAC, in advancing its concerns over these names, was performing its role according to its members’ wishes. However, the ICANN Board’s imposition of these wishes upon the community without prior consultation demonstrates numerous flaws and poor precedents:
We note many of our concerns regarding this process have been expressed in Kurt Pritz’s letter to the GNSO Drafting Team dated March 2. We believe, though, that rather than simply requesting further details and refinement; staff's concerns call into question the value of the entire initiative.
In view of the above, the ALAC specifically advises and requests the ICANN Board to reconsider its directions regarding the Red Cross and Olympic names as being ultimately against the global public interest. This matter should be reviewed with the purpose of giving the ICANN Board guidance on the global public interest related to making changes to previously approved multi-stakeholder consensus.
ALAC further advises the ICANN Board to leave the Applicant Guidebook unmodified in this regard. As the body mandated by ICANN to represent the interests of Internet end-users around the world, we believe that this initiative damages the credibility of ICANN’s multi-stakeholder model without providing substantial end-user benefit, but has the effect of creating new potential sources of public confusion and instability.
Evan Leibovitch
Thanks for the edits! I've incorporated them all.
Anonymous
I approve this statement. I would empathize the fact that Olympics do not belong to the IOC.
http://www.komaitis.org/1/post/2012/03/comments-submitted-by-dr-konstantinos-komaitis-regarding-the-proposals-for-protection-of-international-olympic-committee-and-red-crossred-crescent-names-at-the-top-level.html
As Konstantinos points out, the Olympics date back to Ancient Greece and are part of the Greek mythology. This belongs to the Greek people, and more generally to the culture of all humanity.No organization can confiscate for its own profit what belongs to all humanity.
Patrick Vande Walle
Alan Greenberg
I apologize for the late timing, but a couple of comments. Nothing here is meant to change the tone of the statement, just to make sure that it is factually correct.
- Regarding the first bullet of Process, there was no explicit scope limitation given to the DT. However, given that the exclusion was in the Application Guidebook and the application period was proceeding, I do not think that suggesting that it be removed for this round was seriously considered (or even deemed possible), and certainly not a good use of the groups time.
- It is far from clear is the list of reserved names is indeed a policy issue or one of implementation. Although the Reserved Names list was part of the New gTLD policy discussion (as were MANY things that are not formal policy). As an example, consider the changes made to reserve geographic names and those to allow 2 character names in some scripts.
- The last bullet on restrictions on ccTLDs is outside of ICANN's scope. I believe (but am not sure) that a ccNSO PDP could impose such a rule, but only on ccTLDs who are members of the ccNSO.
Salanieta Tamanikaiwaimaro
The Issues before the ALAC
This is in response to call for feedback[1] from ALAC Liaison officer, Alan Greenberg to the GNSO on the GNSO Red Cross/IOC matter. The GNSO International Olympic Committee/ Red Cross Drafting Team has put out a consensus call and is soliciting responses prior to September 26, 2012. The context of the request for feedback is to gather and feed our input as ALAC for the GNSO IOC-RC Draft Team as they prepare their list of recommendations and options to the GNSO. Their recommendations will be fed to the GNSO Council which if the Council adopts will go to the ICANN Board.
Retrospection
The Generic Names Supporting Organization[2] (GNSO) is responsible for developing and recommending substantive policies to the ICANN Board in relation to gTLDs. The GNSO Council is responsible for overseeing the Policy Development Process (PDP)[3].
The Idea of Special Protection
In assessing whether a PDP is necessary, retrospection is essential. The idea of protection for the International Olympics Committee (IOC) and Red Cross/ Red Crescent (RCRC) names at the top and second levels was initially proposed by the Government Advisory Committee (GAC). The GAC has been advocating “enhanced protection” for the IOC and RCRC names at the top and second levels[4] as these “organizations are protected at both international level through international treaties and through national laws in multiple jurisdictions[5]”.
The essence of GAC’s proposal to the GNSO is that “ICANN should amend the new gTLD Registry Agreement and add a new schedule of second level reserved names where the new schedule should reserve the terms most directly associated with the IPC and the Red Cross Crescent Movement[6]”. The proposal is also to add “protection to the second level reserved names is intended to complement the permanent protection of Olympic and Red Cross at the top level[7]”. It follows that any variations to Registry Agreements require the activation of a Policy Development Process (PDP).
Special Protection and Exclusivity – IOC/RCRC
The ICANN Board (Board) had resolved in 2011, in Singapore[8] that protection would be given IOC- RCRC names and restricted to the top level in the initial round of the new gTLD applications until the GNSO and GAC developed policy advice based on[9] public interest.
Challenges for ICANN
The issue of the need for a PDP has been around for around 5 years and the fact that GNSO dropped the ball on this by not acting on what was reasonably foreseeable leaves the GNSO and ICANN vulnerable and subject to possible future litigation in the event that special protection were afforded to IOC-RCRC and not to other International Organizations which could ultimately harm the security and stability of the DNS by virtue of threatening ICANN's viability as an entity if not managed.
The GNSO Issue Report (2007) on Issue of Dispute Handling for IGO Names and Abbreviation had recommended the following:-
These recommendations went up to the GNSO Council. Whilst the GNSO Council had approved by supermajority vote a PDP on new gTLDs with a number of recommendations on September 7, 2007 it notably did not afford special protection to specific applicants. The GNSO Council Motion in 2007 did not initiate a PDP on the issues and recommendations stemming from the 2007 Issue Report.
On 12 April, 2012 GNSO Council resolved that it would request an Issue Report[10] to precede the possibility of a PDP covering the following issues that is the Definition of the type of organizations that should receive special protection at the top and second level, if any; and policies required to protect such organizations at the top and second level. Whilst the Preliminary GNSO Issue Report on the Protection of International Organization Names in New gTLDs (Preliminary Issue Report) was published for comments, the ALAC has still yet to receive the Final Issues Report referred to in the Preliminary Issue Report has been finalized at the time the Consensus call is being made on this matter. The Final Issue Report would be published following the conclusion of the public comments[11].
In light of the Final Issue Report not yet been released, we are limited to relying on the Preliminary Issue Report. The Preliminary Issue Report is not a substitute for the Final Issue Report and to address the Issues before the ALAC without the Final report would be premature. In light of the same, this analysis is confined to the Preliminary Issue Report and is likely not to address key considerations that may be canvassed in the Final Issue Report and this Analysis may be subject to revisions following the release of the Final Issue Report.
The GNSO Council is on record for its intention to restrict the protections solely for the IOC and RCRC names and noting that there may be a “policy impact of the protection for the IOC/RCRC for future rounds[12]. The recent Board Resolution[13] suggest that it is impossible to complete the Policy work prior to 31 January 2013 which was the cut-off date given to the GNSO Council by which they are to advise the Board if there are any reasons pertaining to global public interest or the security or the stability of the DNS. The ICANN Bylaws demands that decisions have to be made by applying documented policies neutrally and objectively, with integrity and fairness[14] and acting with alacrity and consulting with those affected and remaining accountable through mechanisms enhancing ICANN’s effectiveness.
Potential Anti-Trust Liabilities
The Honorable Philip S. Gutierrez, United States District Judge on 4 August 2012 Manwin Licensing International S.A.R.L., et al. v. ICM Registry, LLC, et al.[15] had ruled that “anti-trust” claims could be filed over controversial .xxx. This will have implications as well on the development of Policy as pertaining to the new gTLDs and the matter at hand. Of relevance is this excerpt[16], see:
a. ICANN’s Involvement in Trade or Commerce
By its terms, the Sherman Act applies to monopolies or restraints of “trade or commerce.”
15 U.S.C. §§ 1, 2. The identity of a defendant as a nonprofit or charitable organization does not immunize that organization from antitrust liability. NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 101 n.22 (1984) (“There is no doubt that the sweeping language of § 1 [of the
Sherman Act] applies to nonprofit entities.”). To the contrary, nonprofit organizations that act in trade or commerce may be subject to the Sherman Act. Big Bear Lodging Ass’n v. Snow
Summit, Inc., 182 F.3d 1096, 1103 n.5 (9th Cir. 1999) (“A nonprofit organization that engages in
commercial activity . . . is subject to federal antitrust laws.”). Rather than focusing on the legal
character of an organization, an antitrust inquiry focuses on whether the transactions at issue are
commercial in nature. Virginia Vermiculite, Ltd. v. W.R. Grace & Co. – Conn., 156 F.3d 535,
541 (4th Cir. 1998) (“We emphasize that the dispositive inquiry is whether the transaction is
commercial, not whether the entity engaging in the transaction is commercial.”). “Courts
classify a transaction as commercial or noncommercial based on the nature of the conduct in
light of the totality of surrounding circumstances.” United States v. Brown Univ. in Providence
in State of R.I., 5 F.3d 658, 666 (3rd Cir. 1993). In any circumstance, “[t]he exchange of money for services . . . is a quintessential commercial transaction.” Id. [My own underlining]
This ongoing matter highlights the vulnerability of ICANN with the new generic top level domain names as it is exposed to possible anti- trust liability. It follows that there has to be a wise stewarding of the processes.
Relevant Considerations from the Preliminary Issue Report
ICANN Staff had advised that in the event that the GNSO Council were to initiate a PDP on the special treatment of IOC/RCRC or in examining that the Working Group should:-
In its organizing Articles, ICANN has agreed that it would appropriately consider the need for market competition and the protection of rights in names and other intellectual property when approving TLDs and registries. The GNSO Council recognizes that that the exclusive protection given to IOC-RCRC may have policy implications as evident in various discussions and resolutions.
Risk Management and Impact on ICANN
A PDP is necessary given that the Preliminary Issues Report has highlighted the numerous International organizations who may also meet the “GAC proposed criteria”, that is, that are already protected under multiple treaties and domestic regulation and judging from some of the comments during the Public comment period, that many legal counsels from these International Organizations who have made joint representations to ICANN that they would fully intend that this should apply to them as well.
The Core Values of ICANN amongst which includes “fairness” and “transparency” demands that treatment is properly applied. It goes without saying that a Policy Development Proposal is required. There are lessons to be learnt from the Manwin Licensing International S.A.R.L., et al. v. ICM Registry, LLC, et al and it highlights the risk of potential anti- trust claims stemming from those who may allege antitrust injury, conspiracy between IOC and Red Cross Red Crescent to restrain trade or monopolize a relevant market, anticompetitive or exclusionary conduct by IOC and Red Cross.
Given that the Preliminary Issues Report state that there are 5000 Inter-Governmental Organizations (IGOs), 35,000 Non-Governmental Organizations (NGOs) and where it is still uncertain what the criteria is, it follows that one can safely assume that the estimated “risk” stemming from potential Anti-Trust claims are serious business risks that could jeopardize the security and stability of the management of the DNS.
To assess the level of risks, ICANN should create a model simulation based on these numbers and average costs of litigation, settlements, evaluate health of ICANN by conducting a thorough financial analysis using a host of ratios to see whether these are sustainable in the long run.
Challenges to Development of Objective Criteria and the PDP
The Preliminary Issue Report have pointed out issues to explore for the PDP. This would include the need to develop objective criteria for International Organizations that would qualify for protection.
The ICANN Bylaws are very clear about GNSO Policy Development Processes[18]. The minimum requirements[19] include having a Final Issue Report (which still has yet to be furnished), formal initiation of the process by the Council, formation of a Working Group or other designated work method, Initial Report by the Group, final report produced by the Working Group or other methods which is forwarded to the GNSO Council, Council approval of PDP Recommendations contained in the Final Report by the required thresholds, Recommendation and Final Report that is forwarded to the Board through a Recommendations Report which is approved by the Council and finally Board approval of the PDP recommendations.
Given the ICANN Board Resolution[20] which approved the gTLD Program in 2008, it would have been reasonable to expect that since the GNSO Council had prior warning stemming from the 2007 Issue Report that there would be a need for a PDP.
It has become an accepted process within the GNSO that prior to the GNSO Council formulating decisions that they would have an Issue Report.
The ICANN Board in its recent meeting had highlighted that if there are protections for the second level that in order to be effective they are to be in place prior to the delegations of the first new gTLDs[21]. It would appear that the ICANN Board in stating that the Policy would not be ready before January 13, 2012[22] appears to be suggesting that second level protections for the first new gTLDs especially if these protections are to include adding a new schedule of second level reserved names where the new schedule should reserve the terms most directly associated with the IPC and the Red Cross Crescent Movement.
It is disturbing that the Final Issues Report is not in circulations as yet. The Board have indicated though that for any protection to be effective that they have to be in place prior to the delegation of the new gTLDs.
Whilst the protections for the IOC and Red Cross and Red Crescent are in place at the top level, and the Board is wise to favour a conservative approach as far as protection of the second level domain names are concerned.
Community Feedback In Relation to Proposal to offer Special Protection to the IOC/RCRC Names
It is also important to review the Report of comments that were made in response to the call for comments from 2 March 2012 to 14 April 2012 on the Proposal to Protect the International Red Cross and International Olympic Committee Names at the Top Level in New gTLDs.
It is notable that of the seventeen comments made, 14 comments opposed the protection for diverse reasons. It is also worth noting that six out the seven process related submissions were undermined in the manner through which the IOC/RCRC Drafting Team developed its recommendations. Without going into the merits of the discussions generated from the Report as it would be premature without access to the Final Issue Report, it is reasonable to foresee that there are diverse challenges that would exist if these special protection was to trickle down to the second level.
Legitimacy of the Special Protection Given to IOC and RCRC
I am aware of the Policy implications of creating an exception. However, I have had more time to mull, muse and reflect on the matter. I realised that the legitimate fear of creating an exception that could open the floodgates for all kinds of protection of "names" and "marks" that could possibly make the reservation of names policy or practices controversial and extremely difficult. The focus of my reaching this conclusion is based on my view of the end users and what global public interest is.
Narrowing the Exception
I find that there are end users in many parts of the world whose lives have been saved through the generous work of humanitarians such as the International Red Cross. Whilst I believe that International Red Cross should be given the privileges and protections afforded to it, the same should not be given to the International Olympics Committee as these are two different beasts. Both the IOC and RCRC were given the opportunity to respond. In instances where the exception is granted, it must be an extremely narrow one and my view is that the GAC proposal that highlights the twin criteria can and should be further narrowed and restricted to universal humanitarian assistance.
It is for this reason that I would recommend that the PDP for IOC and RCRC be separated.
[1] Email by Alan Greenberg to ALAC on September 19, 2012
[2] Article X, section 1 of ICANN Bylaws accessed via http://www.icann.org/en/about/governance/bylaws#X as at 20th September, 2012
[3] Article X, section 1 of ICANN Bylaws
[4] ibid
[5] ibid
[6] Protecting the International Olympic Committee and Red Cross/Red Crescent Names in New GTLDs in https://gacweb.icann.org/download/attachments/1540128/GAC+advice+on+IOC+and+Red+Cross+Sep.+2011.pdf?version=1&modificationDate=1317031625000
[7] ibid
[9] http://gnso.icann.org/meetings/minutes-‐gnso-‐20dec07.html
[10] http://gnso.icann.org/en/resolutions#20120326-1
[11] See page 1 of the Preliminary GNSO Issue Report on the Protection of International Organization Names in New gTLDs
[12] http://gnso.icann.org/resolutions#20120326-1
[13] (NG2012.09.13.01) in http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13sep12-en.htm
[14] Article 1 Section 2 (8),(9), (10) of ICANN Bylaws
[15] CV 11-9514 PSG (JCGx), United States District Court, Central District of California, see: http://pdfserver.amlaw.com/tal/icann.pdf
[16] ibid
[17]Page 25 of the Preliminary Issue Report
[18] Annexure A of ICANN Bylaws, see: http://www.icann.org/en/about/governance/bylaws#AnnexA
[19] ibid
[20] ICANN Board Resolution 20th June, 2011, http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm
[21] (NG2012.09.13.01) in http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13sep12-en.htm
[22] ibid
Evan Leibovitch
I have serious concerns that we might be over-thinking the details.
Alan (and others, probably including some of us) will be involved in the GNSO workings to flesh out details. But the parallel statement I was thinking of IM should be more brief, less in mind of details and more in mind of strategy. We need to bear in mind that the audience for ALAC statement is the Board and general public, not just the GNSO.
The only immediate issue is "do we put in a temporary measure pending a more in-depth work (ie, PDP)... Sort of like a legal injunction in advance of a trial
My instinct is suggesting that:
Salanieta Tamanikaiwaimaro
Hi Evan! There are two issues before the ALAC:
My view is for the purpose of the call that is currently made which is to address the GNSO IOC/RC Drafting Team as they prepare the recommendations, it will require a response, and in my view, we should highlight and show the rationale behind why we are arriving at the conclusion because it forms a record.
When communicating the same, you can always have an Executive Summary and for those who may wish to pursue the discussion, dialogue or examine the Analysis, there is always the full content. For something like these two issues the ramifications on end users, global public interest and ICANN is phenomenal which is why submissions are required as I had mentioned via my email to the ALAC Working List.
I would suggest the following course of actions:-
It is also important to demarcate the intended audience which in this instance is the GNSO IOC/RC and given that the GNSO is mandated under the Bylaws to coordinate the PDP, it is proper and fitting that we address them on our concerns.
Evan Leibovitch
Sorry, I posted this to the wrong workspace. Never mind
I fully agree a dual parallel strategy is called for. What I was referring to was the statement to the Board.