[CCWG-ACCT] Board comments on the Mission statement

[David Post]

At 05:41 PM 11/22/2015, Bruce Tonkin wrote:
>Hello David,
>
>DP:     The UDRP is a good example of how this line works, for 
>me.  ICANN does have the power to set up a process to resolve 
>disputes over domain names, because the outcomes of those disputes 
>necessarily and inherently affect the content of the DNS databases 
>directly.  ICANN does not have the power to set up a process to 
>resolve disputes over consumer fraud complaints, because the 
>outcomes of those disputes do not affect the content of the DNS databases.
>
>BT:  That sounds reasonable - although the decisions of UDPR do 
>relate to how the domain name is used, which inevitably involves 
>considering the content of websites or emails that make use of that 
>domain name.   e.g. using "apple" as an example.  I can have a 
>domain name like "apple.expert" that refers to an expert on the 
>topic of Apples as a fruit - but couldn't use that domain name 
>without approval for being an expert on Apple computers.


DP  I think I might disagree with you about that, but I don't think 
that matters for the current question.  I don't actually think that 
Apple gets some kind of a "veto" over my attempt to register the 
domain "apple.expert."  But we don't have to decide that question 
here; what I think we DO agree on is that the question is indeed 
within ICANN's "picket fence" - that ICANN has the power to make that 
decision (or to set up a process like the UDRP to make that 
decision), because that dispute (like the disputes handled by the 
UDRP) is a dispute over the name itself, and how names are allocated, 
and it necessarily affects the content of the DNS databases directly;


>BT   So the dispute does relate to the domain name, but resolving 
>that dispute requires an understanding of how that name is used.

DP   Correct.  I'd say it a little more forcefully: the dispute 
doesn't just relate to the domain name, it is about the domain name.

>BT  A counter example Is suppose could be a name like 
>"computer.expert".   A website referenced by that domain name could 
>potentially use trademarks of Apple, but that would be a dispute 
>about the content of that site, and not the domain name.  The main 
>requirement would be that the contact information for the domain 
>name is accurate, so that Apple could take the appropriate legal action.

DP  We agree on that, too.  Whether someone can or cannot use the 
Apple trademark on a site at computer.expert (or at davidpost.com, 
for that matter) is NOT a question about the name "computer.expert" 
itself, or about how the name "computer.expert" is to be allocated; 
the exact same question about the use of Apple's trademark can arise 
at davidpost.com, or at icann.org ... That is a question that 
concerns what the stringholder can do once the string has been 
allocated to him/her, and that is NOT within the scope of ICANN's power.

David






>Regards,
>Bruce Tonkin
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>David
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>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
>book (Jefferson's Moose)  http://tinyurl.com/c327w2n
>music http://tinyurl.com/davidpostmusic publications
>etc.  http://www.davidpost.com
>*******************************
>
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*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic publications 
etc.  http://www.davidpost.com
*******************************