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Olympic gTLD showdown coming in Costa Rica

Kevin Murphy, March 5, 2012, Domain Policy

While the ICANN public meeting in Dakar last October was notable for a heated clash between governments and the domain name industry, the Costa Rica meeting next week may be characterized by these two recent enemies uniting against a common enemy.

ICANN staff.

Members of the Generic Names Supporting Organization, the Governmental Advisory Committee and the At-Large Advisory Committee all appear to be equally livid about a last-minute new gTLD program surprise sprung by ICANN late last week.

The hitch relates to the ongoing saga about special brand protection for the International Olympic Committee, Red Cross and Red Crescent movements in the new gTLD program.

The need to develop rights protection mechanisms for essentially just three organizations has always been a slightly ridiculous and unnecessary premise, but recently it has assumed symbolic proportions, cutting to the heart of the multistakeholder model itself.

Now, following a perplexing eleventh-hour ICANN mandate, Costa Rica is likely to see some fierce debate about the ICANN decision to kick off the new gTLD program last June.

We expect the GNSO and the GAC to show a relatively united front against ICANN staff on the IOC/RC issue. The At-Large Advisory Committee is also set to throw a bomb or two.

There’s even an outside chance that upcoming talks could wind up adding delay to the next phase of the new gTLD program itself…

The full text of this pre-ICANN 43 policy analysis is available to DomainIncite PRO subscribers here.

Olympics warming to new gTLD bid?

Kevin Murphy, February 23, 2012, Domain Policy

ICANN’s new generic top-level domains Applicant Guidebook may be modified to make it clear that the International Olympic Committee can apply for .olympic if it wants to.

That’s judging by the current state of negotiations in an ICANN working group set up to give special protection to Olympic and Red Cross/Red Crescent trademarks.

Currently, the Guidebook contains a multilingual list of strings related to the Olympic and Red Cross brands that are completely banned from delegation as gTLDs.

But a GNSO working group seems to be rapidly veering towards a recommendation that the ban should be waived if the IOC and Red Cross decide to apply.

The IOC and Red Cross would therefore be able to get their hands on .olympic and .redcross.

Both organizations are closely involved in these talks, which suggests that they may not be entirely hostile to the idea of running their own dot-brand gTLDs after all.

The GNSO working group is also considering the idea that the Olympic and Red Cross trademarks should be protected by string similarity reviews, which is not the case currently.

This could mean, for example, that non-identical gTLDs such as .olympus might have to get IOC backing if they want their applications approved.

The GNSO Council is expected to vote to approve or reject the recommendations at its meeting in San Jose, Costa Rica next month.

It’s not clear whether this would give ICANN enough time to rubber-stamp the decision before the new gTLD application window closes to new applicants March 29.

The decision would not be non-controversial, however. Some ICANN community members are not in favor of granting special trademark protections to anyone.

The GNSO working group has also been tasked by the Governmental Advisory Committee with coming up with second-level protections for the Olympics and Red Cross, but this policy work is unlikely to bear fruit until after the new gTLD application window closes.

IGOs plead for special new gTLD protections

Kevin Murphy, December 15, 2011, Domain Policy

Twenty-eight intergovernmental organizations, including the UN, ITU and WIPO, have asked ICANN for special protection for their acronyms in the new top-level domains program.

A letter sent to ICANN earlier this week and obtained by DI, reads:

we formally request ICANN to make provision for a targeted exclusion of third party registrations of the names and acronyms of IGOs both at the top and second level, at least during ICANN’s first application round and until further appropriate policy could be developed.

It goes on to claim that fighting abusive domain registrations and enforcing rights diverts funds from causes such as famine relief, scientific research and children’s rights.

For the sake of brevity, this is the list of the letter’s signatories in acronym form only: AfDB, EBRD, ESO, CERN, ESA, IADB, IAEA, IFAD, ILO, IMO, IMF, IOM, ITU, NIB, NATO, OECD, OPCW, UN, UNESCO, UNIDO, UPU, WB, WHO, WIPO, WMO, UNWTO, and WTO.

The letter justifies its request by citing the rights given to IGO names under the Paris Convention for the Protection of Industrial Property.

It’s a pretty flimsy argument. The Paris convention does not give IGOs exclusive rights to strings. It may protect the World Bank abbreviation WB, for example, but not to the extent that Warner Brothers can’t also use it to market movies.

The letter also cites ICANN’s Governmental Advisory Committee, which called for IGOs to be protected in its March 2007 GAC Principles regarding New gTLDs advice.

The Principles, however, talk about IGOs in the same breath as regular trademark owners, which is exactly how the new gTLD Applicant Guidebook treats them today.

There is some ICANN precedent for giving in to this kind of special pleading, however.

The latest Guidebook makes several dozen trademarks relating to the Red Cross, Red Crescent and Olympic movements “ineligible for delegation” as gTLDs, but offers them no second-level protection.

It was noted at the time the decision was made – at the behest of the GAC – that giving the Olympics special treatment would create a slippery slope to a full-blown Globally Protected Marks List, a concept ICANN has already rejected.

The UN et al only really have a shot at getting what they want if they can get the GAC on side, and several influential GAC members have already stated that the Olympic/Red Cross case was unique.

I think the response from ICANN will be a letter from president Rod Beckstrom politely declining the request and inviting its signatories to participate in the ICANN community.

Olympics make more new gTLD demands

Kevin Murphy, July 22, 2011, Domain Policy

The International Olympic Committee, fresh from its big win at ICANN Singapore, is pushing for more special protections in the new top-level domains program.

ICANN only approved the new gTLD program last month with the proviso that Olympic and Red Cross strings – .redcross and .olympic for example – would be banned as gTLDs in the first round.

The decision was a pretty obvious piece of political bone-throwing to the Governmental Advisory Committee, which had backed the IOC’s cause.

Now the IOC wants to ensure ICANN will ban .olympic and .olympiad in eight additional languages, including four non-Latin scripts, as well as “confusingly similar” strings such as .olympics.

I expect ICANN will probably grant this concession, even though the idea that somebody other than the IOC could successfully apply for .olympics under existing rules has always been ludicrous.

The IOC has probably already spent just as much money lobbying for these changes as it would have cost to file a slam-dunk legal rights objection, as already allowed by the Guidebook.

And that would only have been necessary, of course, in the vanishingly improbable scenario where somebody was stupid enough to pay $185,000 to apply for .olympics in the first place.

But the IOC now also wants all of its brands banned at the second level in all new gTLDs. This seems like a bigger ask, given that ICANN resolved to protect the Olympic marks “for the top level only”.

In a July 1 letter to ICANN (pdf), published today, an IOC lawyer includes suggested text for the Applicant Guidebook, to be included in the default registry agreement, stating:

In recognition of legislative and treaty protection for the Olympic designations, the labels “OLYMPIC” and “OLYMPIAD” shall be initially reserved at the second level. The reservation of an Olympic designation label string shall be released to the extent Registry Operator reaches agreement with the International Olympic Committee.

This would give the Olympic brand as much protection as country names at the second level.

The problem with this, of course, is that it sets the precedent for a specially protected marks list, which ICANN has resisted and which the GAC specifically has not asked for.

It’s a problem ICANN has arguably brought on itself, of course, given that it already specially protects “icann”, “iana” and a number of other strings on spurious technical stability grounds.

Governments back Olympic domain bans

Kevin Murphy, May 13, 2011, Domain Policy

ICANN’s Governmental Advisory Committee has called for a ban on domain names containing terms relating to the Red Cross and Olympics movements.

Both organizations have for some time been calling for their trademarks to be added to the list of specially reserved strings that nobody will be able to register under new top-level domains.

The GAC “strongly supports” these demands.

In a piece of uncharacteristically straightforward advice (expect much more of this in the wake of the .xxx decision), GAC chair Heather Dryden wrote to ICANN:

The GAC advises the ICANN Board to approve these requests and to direct staff to reflect the Board’s approval in the May 30, 2011 version of the Applicant Guidebook.

It’s special pleading, of course, but there’s plenty of precedent for the Olympics, Red Cross and Red Crescent being given special protection under national laws, as Dryden notes in her letter.

I’d guess that this is a bone ICANN may be willing to throw, given that it has more important unresolved issues still to discuss with the GAC, some of which could delay the new gTLD program.

The Applicant Guidebook’s current list of reserved names includes the names of ICANN and related organizations, several terms used in networking, and country names.

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