ICANN and the Red Cross: An exceptional exception

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 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.

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

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 a quite 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:

• 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. 
   
• 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.