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ICANN and the Red Cross: An Exceptional Exception

Jovan Kurbalija

ICANN's policy on the special protection of the Red Cross and the International Olympic Committee (IOC) names has triggered a very lively discussion including contributions by Konstantinos Komatis, Milton Muller, Wolfgang Kleinwächter, and myself (with Avri Doria's reply).

There is an agreement that the exceptions are dangerous for ICANN's gTLD policy process which is in a formative and delicate phase. Whenever precedents to the rules are set (RC/IOC decision), it is essential that these precedents are discussed in a very solid process with necessary checks and balances. The major risk, as has happened with the ICANN decision, is when substantive exceptions are discussed through procedural exceptions.

Additional complexity was triggered by jointly discussing the Red Cross and the IOC, which are quite different organisations in their main missions, organisation, and legal status.

The status of the Red Cross emblems and names is exceptional for historical, legal, and humanitarian reasons.

The Red Cross emblem and name are at the basis of humanitarian protection. For more than 100 years, the Red Cross emblem has been used to clearly distinguish medical personnel from combatants on battlefields. Today, jeeps and trucks with Red Cross emblems can be seen on the streets of Syrian cities trying to reach people in need of help. The Red Cross movement puts a lot of effort into training soldiers and the general public on the relevance of the proper use of the Red Cross emblem. Apart from an ethical rationale, the Red Cross often argues that support for its mission is a useful 'insurance investment'. All of us, particularly in increasingly uncertain times, may benefit from Red Cross protection in conflict or humanitarian crises.

The importance of the Red Cross emblem/name for its core function has led to very strong protection in both international and national law. It is protected by the Geneva Convention, which is signed by 194 states and supported by the global public. Protection of the Red Cross emblem/name is incorporated in national laws through the Red Cross legislation. In order to ensure additional protection, many countries, such as Canada, provide private law protection by treating the Red Cross emblem/name as a trademark. One of the reasons for additional trademark protection is practicality. Trademark protection has well-established procedures.

Other intergovernmental organisations cannot use the Red Cross protection as a precedent for requesting the same status in ICANN's domain name space. At international level, there is quite a stretched legal construction for special protection of inter-governmental organisations based on Article 6 of the Paris Convention for the Protection of Industrial Property and other related treaties (see: an excellent analysis by K. Komatis).

At national level, I am not aware that any country has national legislation — as in the case of the Red Cross — protecting, for example, UNESCO or WTO names. There is a well-known case of the use of www.gatt.org by anti-WTO organisations. Although www.gatt.org was designed to confuse visitors not only by name, but also by design (in the early days it looked like the WTO website), the WTO could not do anything legal about it.

In sum, there is no legal basis for making an analogy between the Red Cross and other inter-governmental organisations in the field of protection of names and emblems.

What can be done in order to protect this unique status of the Red Cross?

There is one paradoxical situation in framing this discussion. The protection of the Red Cross is discussed as the exception to ICANN's new policy. It is not the other way around, i.e. that the 'cyber' aspect is the exception from the well-established status of the Red Cross. Red Cross names and emblems have been protected for more than a century.

Practically speaking, there are two main possibilities to address the Red Cross question — and many variations in between:

  1. ICANN can apply the Applicant Guidebook and effectively not provide the same level of protection the Red Cross enjoys in the 'real world'; the Red Cross movement will have to use a wide set of legal protection mechanisms. For example, in Canada, it can use both national public and private (trademark) law. This approach has quite a few weak aspects including putting pressure on both the Red Cross and the Internet registrars (monitoring domain name space, legal action). The Red Cross Movement (ICRC, IFRC and National Societies) would need 200-300 officials to monitor the domain name spaces and take legal actions against misues of the Red Cross names and emblems.
  2. ICANN can provide full protection for the Red Cross (equal to the real world), as it has started doing. It would make both a pragmatically and an ethically sound policy. It is pragmatic because it relieves the administrative and financial burden from the Red Cross Movement and Internet registrars. It is ethical because it supports the humanitarian protection principle, which is one of the cornerstones of international public order codified in the Geneva Conventions and widely supported by international community.

ICANN's way of dealing with the Red Cross is paved not only with good intentions but also with a solid legal basis. However, it remains to be seen how ICANN will navigate the slippery territory caused by procedural shortcomings and addressing the Red Cross and the IOC together.

This article originally published in Diplo.

By Jovan Kurbalija, Founding Director of DiploFoundation. More blog posts from Jovan Kurbalija can also be read here.

Related topics: Cybersquatting, Domain Names, ICANN, Internet Governance, Top-Level Domains

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Comments

Try telling that to Johnson & Johnson John Berryhill  –  Mar 23, 2012 11:15 AM PDT

"Today, jeeps and trucks with Red Cross emblems can be seen on the streets of Syrian cities trying to reach people in need of help."

As can emblazoned trucks be seen around the world on their way to those desiring Coca-Cola.

It is also emblazoned on commercial products sold by Johnson & Johnson.  As you well know, J&J;has been selling products with that emblem since 1887 as explained at http://www.jnjredcross.com/, and the American Red Cross has more recently been undercutting J&J;'s rights by licensing the Red Cross symbol for sundry products which compete with those of J&J;.

The entire "these two things are unlike any other two things" argument is a post-hoc rationalization.  Nobody sat around coming up with this artificial distinction and then set off in search of qualifying organizations.  The ability to create these sorts of artificial distinctions is, of course, what lawyers are good at doing.  But at no point did anyone in the process propose this criterian absent the demands of the IOC and Red Cross.  We all learned to play "one of these things is not like the other" by watching Sesame Street, but the simplest way to understand what makes these institutions different from others is by their spectacular success in seeking and obtaining licensing revenue.  None of the lobbyists and lawyers for these organizations are being paid in blood donations (and we will not go down the rabbit hole of the for-profit arm of the American Red Cross on that).

The fact that a compelling post-hoc rationalization can be constructed around this species of special pleading is not preclusive of the construction of other compelling and sympathetic post-hoc rationalizations for any number of others which is why this particular rationalization does not squarely meet the camel's nose under the tent objection to such rationalizations as a class. My own charity, "Lawyers Without Ethics" may not be as well known as "Doctors Without Borders", but we are larger and more well funded.

"Although www.gatt.org was designed to confuse visitors not only by name, but also by design (in the early days it looked like the WTO website), the WTO could not do anything legal about it."

Nor should they have been able to.  The launch of that site was an act of political protest, and if your point is that any organization is by treaty, law or otherwise above criticism, then we are certainly heading down an interesting road.

Red Cross and Coca Cola Jovan Kurbalija  –  Mar 29, 2012 6:07 AM PDT

"As can emblazoned trucks be seen around the world on their way to those desiring Coca-Cola."

There is "some" difference between those desiring Coca-Cola and those being saved by RC in wars and humanitarian catastrophe (Haiti, Tsunami...). One can cynically argue, in the style of Marie Antoinette "Let them eat cake", that humanitarian victims should be served Coca Cola instead of water (if they are thirsty).

On WTO-GATT..... parody should be always protected. Parody has an important function. It can help preserving mental hygiene of humanity.

postscript John Berryhill  –  Mar 23, 2012 12:46 PM PDT

I neglected to point out the irony here:

"Today, jeeps and trucks with Red Cross emblems can be seen on the streets of Syrian cities trying to reach people in need of help."

Indeed.

And what they need help from is oppression by a sovereign entity of the type that legitimizes treaties and promulgates national laws.

Clarification Jovan Kurbalija  –  Mar 29, 2012 6:10 AM PDT

Support for the oppressed and help for humanitarian victims are not mutually exclusive. Moreover, in most cases, the oppressed are also the main humanitarian victims (refugees, the internally displaced, people without food and shelter).

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