Online Freedom of Expression Under Threat at ICANN – Get Involved!

IP Justice submitted a comment to ICANN’s public comment forum on the issue of initiating an ICANN Policy Development Process (PDP) to create special privileges to control the use of certain words in Internet domain names.

The comment was filed in response to requests from the International Olympic Committee and Red Cross groups who have asked ICANN to grant them the exclusive right to use in domain names several hundred words that these groups claim are their “exclusive property”.  Despite their grossly exaggerated legal claims and overblown fears, these groups lobbied the Governmental Advisory Committee (GAC) at ICANN to put pressure upon the ICANN Board and GNSO Policy Council to create such unprecedented rights over the use of words in domain names.  Several dozen inter-governmental organizations soon filed a “me too” request to ICANN asking that they be granted the same privileges that the Olympic Committees and Red Cross groups are given.

IP Justice’s comment is filed in response to the preliminary issue report prepared by ICANN staff.  ICANN’s public comment period is scheduled to be open until 26 July 23:59 UTC.  Anyone concerned about this proposal may file a comment by sending an email to < prelim-protection-io-names@icann.org > while the comment period is open.  More info here.

IP Justice submitted an earlier comment on the issue to ICANN in March 2012.

IP Justice Comment of 23 July 2012:

As there are already robust mechanisms in place in existing ICANN new gtld policy to protect these interests, there should be no new ICANN Policy Development Process (PDP) at this time to create new privileges for the Red Cross groups, Olympic Committees, nor other Inter-Governmental Organizations (IGO’s).  

Most notably, these groups have not shown why the existing mechanisms baked into ICANN new gtld policy are insufficient to protect their legitimate interests.  Their main argument is that they don’t want to pay to exercise their rights and file objections should anyone actually put down the $185,000 filing fee to apply for a tld these groups are exclusively entitled to. No organization anywhere wants to pay filing fees or consultant fees to protect their interests, so these groups are in no way unique with that rationale for their request.  The first round of applications demonstrated the fears of abuse of these groups’ rights to be entirely overblown and unsubstantiated as no applications contained words claimed to be the property of these groups.  

Creating special privileges for these groups at the second-level represents a significant departure from previous longstanding ICANN policy and should not be done without giving serious consideration to the implications of such a dramatic shift in burden and responsibility for the content of domain names onto third parties.  Such a policy would undermine an open Internet and create rights that exist no where in law.  No special rights to second-level domains should be undertaken by a PDP at this time.  Mechanisms such as the UDRP, the URS, the Trademark Clearinghouse, etc. already provide robust tools to rights owners to protect their legitimate rights.

What these groups are really asking ICANN for are special privileges that do not exist anywhere in actual law.  Numerous organizations around the world legally use the mark “olympic”, “red cross”, and names of other IGO’s in the course of their operation without any violation of these groups’ rights.  One of the reasons is because these rights are, indeed, not exclusive; and most often are not global in their reach, nor do they extend to preventing others who use the marks in ways that do not cause confusion among consumers, such as for criticism or to provide entirely unrelated goods or services.   Others have made the important distinction and point that rights to olympic symbols are not the same as rights to words.  In 2007, the GNSO voted against special protections for IGO’s, and various reserved names working groups and the like over the last 7-8 years have rejected doing exactly what these groups now ask for (again).

So the proposed creation of worldwide exclusive licensing rights to certain words in domain names for these select groups is a MAJOR expansion of existing legal rights that has not been thoroughly considered by those on the verge of granting the request and creating those unprecedented rights for online speech.

Furthermore, there are far more important and pressing issues for scarce ICANN energy and resources to be devoted to than creating special privileges for arbitrary, albeit politically-connected, fundraising interests.

For the reasons provided above, I recommend against the creation of a PDP to consider further privileges for any of these groups at this time.

Thank you,
Robin Gross
IP Justice