ICANN’s GNSO Council voted against providing special brand protection to the Olympics and Red Cross today, in a shock vote that swung on a trademark lawyer’s conflict of interest.
A motion before the Council today would have temporarily protected the words “Olympic”, “Red Cross” and “Red Crescent” in various languages in all newly approved gTLDs.
The protections would be at the second level, in addition to the top-level blocks already in place.
The motion merely needed to secure a simple majority in both of the GNSO houses to pass, but it failed to do so despite having the unanimous support of registries and registrars.
Remarkably, the motion secured 100% support in the contracted parties house (registries and registrars) but only managed to scrape 46.2% of the vote in the non-contracted parties house, just one vote shy of a majority.
While the Non-Commercial Users Constituency predictably voted against the extra protections, it was an unnecessary abstention by an Intellectual Property Constituency representative that made the difference.
Trademark lawyer Brian Winterfeldt explained that he was abstaining — which essentially counts as a “no” vote — because the American Red Cross is his client so he had a conflict of interest.
The second IPC representative, newcomer Petter Rindforth, accidentally abstained also, before changing his vote to “yes” after it was explained that abstention was not an official constituency position.
Another member of the non-contracted parties house was absent from the meeting, potentially costing the motion another vote.
Half an hour later, when the Council had switched its attention to other business, Winterfeldt realized that his conflict of interest didn’t actually bar him from voting and asked if he could switch to a “yes”, kicking off a lengthy procedural debate about whether the vote should be re-opened.
In-at-the-deep-end Council chair Jonathan Robinson, in his first full meeting since taking over from Stephane Van Gelder last month, eventually concluded that because some councilors had already left the meeting it would be inappropriate to reopen the vote.
So the decision stands, for now at least: no special protections at the second level for the Olympics or Red Cross.
The Council is due to meet again December 20, when it may choose to revisit the issue. If it does, proponents of the motion had better hope the NCUC doesn’t request a deferral.
If today’s “no” vote is still in effect January 31, the ICANN board of directors may feel obliged to overrule the GNSO in order to approve the second-level reservations.
This wouldn’t look great for the vaunted bottom-up decision-making process, but the board is under a lot of pressure from the Governmental Advisory Committee to protect these two organizations, and it has already said that it favors temporary protections.
I suspect that the damage done today is not to the Olympics or Red Cross, which will probably get what they’ve been lobbying for for the last few years, but to the GNSO Council, which seems to have kicked off its new year on a divisive and embarrassingly bureaucratic note.