[ga] FYI: GAC Commentary on the Names Council Resolution

[Alexander Svensson <alexander@svensson.de>]

GAC Commentary on the Names Council Resolution
26 October 2001
http://www.icann.org/committees/gac/names-council-resolution-commentary-26oct01.htm
_________________________________________________________________

1. Background and Introduction

In August 2001, GAC became aware of anomalies in registration
practices during the .info sunrise period with respect to country
names. Accordingly, GAC in Montevideo considered the question and
published conclusions with respect to country names in its
Communiqué.[1] The ICANN Board supported the GAC recommendations
in principle and decided that such names should be registered by
the Registry to ICANN for the time being unless registered by a
valid trademark holder.[2] The Board has also initiated an Action
Plan to address other aspects of the issue and to report before
the March 2002 Accra meeting.[3]

These recent developments have given rise to some discussion in
the ICANN Community, notably on the DNSO lists. The Names Council,
on 11 October 2001 adopted a Resolution about this.[4]

GAC has comments and reservations about the Names Council
resolution. In the interests of a transparent and informed
discussion, and hopefully with a view to a resolution of any
outstanding difficulties, GAC submits this commentary for the
consideration of ICANN and all other parties concerned.

GAC would also recall that this is not the first time that it has
addressed this issue. In its November 2000 Marina del Rey opinion
on new gTLDs,[5] GAC stated that:

  3.5 The GAC discussed geographical, geopolitical, and ethnic
  concepts in relation to new gTLDs. These discussions will
  continue in subsequent meetings of the GAC.

  3.6 The GAC notes that WIPO Member States have asked WIPO to
  consider and make recommendations   on issues related to bad
  faith, abusive, misleading or unfair use of personal names,
  International Non-proprietary Names (INNs) for Pharmaceutical
  Substances, names of international intergovernmental
  organizations, geographical indications, indications of
  source or geographical terms, and trade names.

  3.6.1 WIPO's report may lead to the development of policies
  in these areas. In these circumstances, the registration
  policies for new gTLDs, as approved by ICANN, could make
  reference to the WIPO 2nd Domain Names Process and provide
  for ready adoption of any ICANN policies resulting from this
  process. Accordingly, should registration policies initially
  implemented by new gTLDs allow for registrations of names in
  any of these categories, registrants should be made aware
  that the adoption of such policies may have potential impact
  on registrations.

Had this advice been taken at the time, any registrant in the new
TLDs registering a name in any of the categories of names
addressed by the WIPO report would have done so in the full
knowledge that a policy development process arising from the WIPO
report could put at risk those registrations. GAC's attention was
drawn to the registration of large numbers of country names in
.info during the sunrise period and upon further investigation
it was evident that a large number of these registrations had not
met the necessary criteria. In the circumstances, and in light of
its previous statements, the GAC advised ICANN to take steps to
reserve country names in .info and assign them to the
corresponding governments and public authorities, at their request.

Such action provides an option, within a small part of the DNS,
for many countries that have expressed serious concerns about
this issue. The GAC's recommendation in Montevideo is a focused
response to an issue that is of great concern to many countries.

GAC is also aware that many governments that may have a concern
about the registration of their country names in .info are not
yet aware of these developments. Furthermore, registration of a
domain name tends to create expectations of continuing use by
Registrants. In the circumstances, the GAC's advice sought to
avoid conflict between such expectations and the expressed
interest of a number of countries to ensure that country names
are used in the interests of the general public in the country
concerned.


2. The WIPO-2 Report

The recent WIPO resolution[6] mandates special sessions of the
Standing Committee on Trademarks (SCT)[7] to address each aspect
of the WIPO-2 Report.[8] The SCT is asked to submit a report by
September 2002.


3. The GAC Recommendation

Following thorough discussion, the GAC Communiqué addresses
primarily country names in .info according to ISO 3166-1.[9] In
developing its response, the GAC consulted with both ICANN and
Afilias with a view to ensuring a feasible and workable solution.

From the point of view of a number of governments and public
authorities, this is a minimum acceptable position and leaves
open a range of related issues to be addressed in the future.


4. Names Council Resolution

It follows that resolution that has been adopted by the Names
Council raises several specific problems from GAC's point of
view. In general, the debate within the DNSO appears not to
recognise the major effort made by GAC members to circumscribe
and limit their requirement for reservation of the names of
countries in .info according to ISO 3166-1, as well as actively
seeking cooperation with Afilias regarding the approach..

The GAC, provides the following comments in relation to aspects
of the Names Council's resolution:

    1. That while it understands the concerns of the GAC, caution
    should be exercised to avoid a short-term reaction to a problem
    that is not inherent to dot info.

The GAC acknowledges that the problem is not inherent to dot
info, however, the GAC made the recommendation to the ICANN
Board because of the 'special nature of .info' and in response
to significant concerns raised with the GAC prior to the
Montevideo meeting. It has not suggested that the reservation
be applied to any other gTLD.

    2. That there is not a full understanding of the implications
    for suppliers and users of retrospective action of the kind
    GAC seeks.

The GAC discussed their proposal with Afilias staff during
the Montevideo meeting. The reservation as recommended by the
GAC, does not hinder Afilias in the administration of their
registration process of names in .info and as such, there are
no retrospective implications for suppliers and users.

It should also be remembered that the GAC first flagged concerns
about the use of geographical and geopolitical names as an issue
in November 2000. In particular, the GAC specifically recommended
that the issues under consideration in the WIPO 2 report and the
possible impact of ongoing policy discussions be raised with
registrants.

    3. That, due to the inherent complexity, the best forum for
    governments to seek solutions to the problems perceived by the
    GAC is the existing forum of such intellectual property
    expertise, namely the inter-governmental specialised UN agency,
    the World Intellectual Property Organisation (WIPO) combined
    with the existing forum for representing the internet community
    in policy making, the DNSO, and other relevant stakeholders.

WIPO is a member of the GAC and as such, the GAC is aware of the
work being undertaken by WIPO in this area. WIPO has referred the
question back to its member governments who have decided on the
immediate follow-up.

It must also be acknowledged that as the domain name system operates
in a dynamic environment, the GAC is aware that it may be called on
to provide advice in specific areas that may precede the work of
inter-governmental organisations such as WIPO. In this vein, ICANN
is to be commended for taking action, as it has done.

In response to the request to the ICANN Board:

    (a) To recommend to the GAC that it reconsiders its recommendation
    in this matter in the light of the work already in progress at
    WIPO following the recent WIPO report 'The Recognition of Rights
    and the use of Names in the Internet Domain Name System; and

    (b) To encourage the GAC and all interested parts of the ICANN
    structure to contribute to WIPO's work in this respect.

The GAC supports the notion that all interested parts of the ICANN
structure contribute to WIPO's work not only in respect to geographic
identifiers , but in relation to the work of WIPO more generally.
Many members of the GAC are also Member States of WIPO and as such
are well-informed on the work being undertaken.

    (c) to invite the Names Council to participate in the discussion
    group on ISO 3166-1 names.

The GAC welcomes the opportunity to discuss the issue with the DNSO on
the understanding that the interested parties, including governments
can participate effectively.


In conclusion, the GAC would welcome further discussion with the DNSO
and Names Council members in order to clarify the arguments on both
parts. However, the GAC disagrees with some of the arguments and
conclusions in the Names Council Resolution of 11 October 2001. GAC
members will be glad to participate in the Action Plan recently
announced by ICANN in this respect.

Dr Paul Twomey
Chair

26 October 2001


_________________________________________________________________

Notes:

[1] http://www.icann.org/committees/gac/communique-09sep01.htm

[2] http://www.icann.org/minutes/prelim-report-10sep01.htm

[3] http://www.icann.org/montevideo/action-plan-country-names-09oct01.htm

[4] http://www.dnso.org/clubpublic/council/Arc06/msg00202.html

[5] http://www.icann.org/committees/gac/new-tld-opinion-16nov00.htm

[6] Assembly of the Member States of the WIPO, September 24 to
    October 3 2001. Decision on the Report of the Second WIPO Internet
    Domain Name process.

[7] Standing Committee on the Law of Trademarks, Industrial Designs
    and Geographical Indications (SCT).

[8] Names of inter-governmental organisations (IGO), Geographical
    Names, International Non-Proprietary Names of pharmaceuticals
    (INNs) and Personal names.

[9] As interpreted by ICANN and in official languages and in English.

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