During its June 20, 2011 meeting in Singapore, the ICANN Board of Directors adopted a
resolution providing for “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.”2
The ICANN Board resolution directed the GNSO Council and the GAC to work together
to develop policy advice for permanently protecting the Olympic and Red Cross names at the top
and second levels of an expanded domain name system.
Pursuant to the Board resolution,
ICANN counsel and staff have implemented Section 2.2.1.2.3 of the Applicant Guidebook, which
temporarily prevents new gTLD applicants from registering certain Olympic and Red Cross
names at the top level during the initial gTLD application round.
B) GAC Proposal
On September 14, 2011, a proposal was sent from the GAC to the GNSO Council
regarding a proposal for the protection of certain International Olympic Committee (“IOC“) and
Red Cross/Red Crescent (“RCRC“) names.
3
The proposal was followed up with a discussion
between the GAC and the GNSO during the ICANN meeting in Dakar and a Question and
Answer document addressing some of the issues with respect to the protection of these names at
the top and second levels. As a result of those discussions, the GNSO Council created an
informal drafting team open to both Councilors and interested members of the community to
assist the GNSO Council in developing its own set of recommendations. The drafting team has
met bi-weekly since December and maintains a publicly-available e-mail archive at
http://forum.icann.org/lists/gnso-iocrc-dt/ (“Drafting Team”). In addition, representatives from
the IOC and the RCRC movement have also been actively participating in the group. A full list
of participants on the Drafting Team is attached as Appendix 1.
C) Activities of the Drafting Team.
The issues presented to the Drafting Team by the GAC Proposal involved significant
questions of implementation both at the top and second levels.
Given the fact that the
application window for the top-level opened on January 12, 2012 and is set to close on April 12,
2012, if any new protections were to be proposed at the top level, those recommendations need
to be approved by the ICANN Board of Directors with sufficient time to provide notice,
predictability and transparency to current applicants in this first round. Conversely, although
there is a need to evaluate whether to create additional protections at the second level, such
protections would not need to be finalized until the first new gTLD Registry Agreement is
executed. The earliest this is expected to occur is Q1 2013. Thus, until this week, the Drafting
Team decided to focus exclusively initially on protections at the top-level, to be followed by
evaluation of the issues pertaining to protections at the second-level.
D) Next Steps
We are currently soliciting feedback from the Drafting Team and GNSO Community
regarding the Drafting Team recommendations at the top level and are also seeking to get
feedback from the GAC in Costa Rica. Assuming that a consensus is reached in the Drafting
Team and Council that is also supported by the GAC, we will strive to hold a GNSO Council
vote in Costa Rica on the recommendations to send to the ICANN Board. We are also working
on obtaining the definitive list of translations as stated above.
PROTECTIONS AT THE TOP LEVEL
In the current version of the Applicant Guidebook, Section 2.2.1.2.3 extends limited
protections to identical matches of certain IOC and RCRC terms at the top-level. However, this
Section does not provide for protections of the IOC or RCRC in all foreign languages, nor does it
invoke “String Similarity Review”, for strings that may be confusingly similar at the top level,
such as “.olympics, .olympix, .redkross, .redkresent, etc.). In addition, the current Applicant
Guidebook would not only prevent third parties from applying for the IOC or RCRC terms, but it
would also not allow the IOC or RCRC to obtain these strings should they desire to do so.
The Drafting Team considered a number of different options with respect to protections
of both the IOC and the RCRC terms at the top level ranging from recommending no changes to
the current implementation mechanisms in the Guidebook, to the adoption of the GAC Proposal
as is. Although no option is technically off the table, it is expected that the Drafting Team will
reach at least a rough consensus in recommending to the GNSO Council the following, which
has been under discussion for the past several weeks.
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.
FUTURE WORK: PROTECTIONS AT THE SECOND LEVEL
Going into Costa Rica and beyond, the Drafting Team understands that it will need to focus on
protections at the second-level to see if it can find consensus within the group on the GAC
proposals. With respect to second-level names, it is the Drafting Team’s belief that the GAC
requests that ICANN amend the new gTLD Registry Agreement to add a new schedule of
second-level reserved names. The new schedule should reserve those terms set forth in Schedule
A attached to the GAC proposal and should include that the identical terms be protected in the 6
UN languages with an “encouragement” to registries to provide additional languages.
It is the Drafting Team’s expectation that that the following questions will need to be addressed
by the Drafting Team in order to provide recommendations on the second level:
1. Should Olympic and/or Red Cross names be reserved at the second level in all
new gTLDs? 5
2. If the Drafting Team supports the notion of reserving IOC or RCRC names at the
second level, what type of reserved name would this be?
i. Option 1: The reserved names should be treated as “forbidden names”
that can never be registered (not even by those organizations)
ii. Option 2: The reserved names should be treated as “modified forbidden
names” that can only be registered by the applicable organizations or their
component parts.
iii. Option 3: Like a 2 letter country code where the Registry Operator may
also propose release of these reservations based on its implementation of
measures to avoid confusion with the corresponding country codes. In this
case, the Registry Operator may propose release of these reservations
based on its implementation of measures to avoid confusion with the IOC
or the RCRC as applicable.
iv. Option 4: Like Country or Territory Names, which are initially reserved,
but the reservation of specific country and territory names may be released
to the extent that Registry Operator reaches agreement with the applicable
government(s). In this case, the IOC/RCRC terms would be initially
reserved, but the reservation of the IOC/RCRC terms may be released to
the extent that Registry Operator reached agreement with the IOC and/or
RCRC as applicable.
3. If the Drafting Team chooses either option ii, iii or iv for Question 2, what would
be the mechanism for removing from the reserved list for such option?
It is the goal of the Drafting Team to have its work completed on the second level protections by
the ICANN meeting in Prague in order to be able to implement changes, if any, to the new gTLD
Registry Agreement prior to any new gTLD Registry Operator having to execute such an
Agreement with ICANN.
[log in to unmask]" type="cite">Sometimes being a pest (meaning me, not KK!) pays (some) dividends - the most recent responses to my querulous behavior on the Council list would indicate that while the Drafting Team's Status Report will NOT be put out for formal public comment (since it is a summary drafted by the Chair rather than an official report from the whole DT), still (1) the DT would like feedback now about its recommendations; and (2) the finalized list of recommendations, which will be created after the Friday call among the DT, the GAC and the GNSO Council, should be put out for formal public comment, as is usually done with all GNSO working group and other community reports.
This still means a very short time available for public comment before the Costa Rica meeting, where the GNSO Council will be asked to vote on the recommendations. As such, I still urge members who believe either the status report and/or ultimately the final recommendations do not represent community consensus or a sound approach to voice their comments, initially through our DT and Council members and subsequently during the formal public comment period.
Thanks and cheers
Mary
Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 03301USAEmail: [log in to unmask]: 1-603-513-5143Webpage: http://www.law.unh.edu/marywong/index.phpSelected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584
As of August 30, 2010, Franklin Pierce Law Center has affiliated with the University of New Hampshire and is now known as the University of New Hampshire School of Law. Please note that all email addresses have changed and now follow the convention: [log in to unmask]. For more information on the University of New Hampshire School of Law, please visit law.unh.edu
>>>
From:
Konstantinos Komaitis <[log in to unmask]>
To:
Date:
2/29/2012 5:58 PM
Subject:
Re: [NCSG-Discuss] Proposed protections for IOC/RC names
Apologies for the cross posting of the email regarding the IO– long day here :)
The issue of the public comment has been discussed and there was some support. I will continue to insist on this for the simple reason that this process has already been sidetracked in many other procedural aspects. We need to maintain at the very least the opportunity of the community to provide its feedback.
Thanks
KK
From: "[log in to unmask]<mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]>>
Reply-To: "[log in to unmask]<mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]>>
Date: Wed, 29 Feb 2012 20:57:09 +0000
To: "[log in to unmask]<mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]>>
Subject: Re: [NCSG-Discuss] Proposed protections for IOC/RC names
All, as you know, the Drafting Team (DT) on which Konstantinos, Joy and a few other NCSG members participated has just released a Status Report on its work, preparatory to the call tomorrow with interested members of the GAC and GNSO Council.
As a Council member, I asked if the Report will be put out officially for public comment, prior to the Council being asked to vote on it in Costa Rica in a couple of weeks. Given the urgency of the issue and the lack of time between now and then, there isn't likely to be a formal public comment period. Instead, the time between now and the Costa Rica meeting is being regarded as the "functional equivalent" of a formal public comment period. It's possible that some fuss can be made about the procedural inadequacy of this, or even about whether the Council ought to vote, but even so, that's not likely to delay or change things as they stand.
Given the level of interest amongst our members in the topic, and the number of strong views that have been expressed, I would recommend that individual members, and/or each Constituency, and/or the SG as a whole, consider sending comments on the Report. I will find out if an ICANN public comment email address can be set up quickly to receive these comments.
I'm attaching the DT's Status Report to this post (if the listserv will let me :)
Cheers
Mary
Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 03301USAEmail: [log in to unmask]<mailto:[log in to unmask]>: 1-603-513-5143Webpage: http://www.law.unh.edu/marywong/index.phpSelected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584
As of August 30, 2010, Franklin Pierce Law Center has affiliated with the University of New Hampshire and is now known as the University of New Hampshire School of Law. Please note that all email addresses have changed and now follow the convention: [log in to unmask]<mailto:[log in to unmask]>. For more information on the University of New Hampshire School of Law, please visit law.unh.edu
>>>
From:
Konstantinos Komaitis <[log in to unmask]<mailto:[log in to unmask]>>
To:
<[log in to unmask]<mailto:[log in to unmask]>>
Date:
2/26/2012 5:57 AM
Subject:
Re: [NCSG-Discuss] [gnso-iocrc-dt] *** FOR IMMEDIATE COMMENT: OPTION 7 v. 2 WITH FREEZE ON LANGUAGE***
I would really hope so and this is certainly how this group started operating. Now, of course, the DT is running out time and I am not sure. I have sent a note to the DT with this question and get back to you
Cheers
KK
From: "Avri org>" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]>>
Reply-To: "Avri org>" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]>>
Date: Sat, 25 Feb 2012 23:21:35 +0000
To: "[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]>>
Subject: Re: [NCSG-Discuss] [gnso-iocrc-dt] *** FOR IMMEDIATE COMMENT: OPTION 7 v. 2 WITH FREEZE ON LANGUAGE***
hi,
A process question:
Will this stuff be going out for community comment before the g-council presumes to vote on it?
avri
On 25 Feb 2012, at 05:51, Konstantinos Komaitis wrote:
Please see the email below, regarding what will be presented to the a call that has been scheduled between this DT and the GNSO and members of the GAC next week. This option appears to be receiving rough consensus, despite all efforts. I am still to hear about the process regarding the letter of non-objection which is crucial, and in particular whether the IOC will be imposing fees when allowing another entity to use a similar name!!!!! The Red Cross has said they will not.
Thanks
KK
From: Jeff Neuman <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]><mailto:[log in to unmask]>>
Date: Sat, 25 Feb 2012 02:26:10 +0000
To: "[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]><mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]><mailto:[log in to unmask]>>
Subject: [gnso-iocrc-dt] *** FOR IMMEDIATE COMMENT: OPTION 7 v. 2 WITH FREEZE ON LANGUAGE***
All,
In line with Steve’s suggestion, I am freezing the language on Option 7 as is with the suggested changes from Lanre and Greg. We could probably word smith this forever. Please consider this the final version for seeking input and for raising during the call with the GAC next week. In the meantime, in addition to the status report, I will begin to draft the straw man of options for the second level.
*******************************************************************
Option 7: 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 too 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.
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 / [log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]><mailto:[log in to unmask]> / www.neustar.biz<http://www.neustar.biz/>
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