[CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name

[Greg Shatan]

Milton,

On Sat, Jun 20, 2015 at 2:47 PM, Milton L Mueller <mueller at syr.edu> wrote:

>  Greg:
>
> Here  I am speaking as a CWG participant and not as an ICG member.
>
> Let me call to your attention that the ICG letter asks CWG to “review the
> proposals from the protocol parameters and numbers communities” and then to
> “determine if it can adopt an approach taken by those communities.”
> ​
>
>
​
I note that the language you so kindly called to my attention goes on to
say "and if not, work together with the protocol parameters and numbers
communities to reconcile the incompatibilities that have been identified."
​

​There's no reason to work in silos.​

> ​
>
>
>
> I suggest that we start with that. Is there anything preventing the CWG
> from quickly and easily resolving the incompatibility by simply going along
> with the proposal to turn the trademarks over to the IETF Trust as
> requested? Frankly I don’t think there is. No one has argued that there is
> any problem or harm to the names community hat would come from adhering to
> the CRISP proposal.
>

​I disagree.  First, I don't think we should make this decision without
appropriate analysis, which should still be relatively quick (although
maybe not particularly easy).​

​Second, our marching orders are to make changes only where they are
justified and we need to provide a justification;"going along to get along"
is not an appropriate justification.​  Third, and while I won't repeat what
I said in prior emails, I put forward a number of problems that could lead
to harm to the community -- for instance, we don't know if the IETF Trust
is capable of exercising the quality control and approval rights, and
policing and enforcement obligations, required of a trademark owner.  In
any event, that is a fact-based analysis, which is why I encouraged us to
come to a common understanding of the facts before coming to any
conclusions or for that matter, engaging in advocacy of any position.

>
>
> I was interested in this part of your response:
>
>
>
> I also think we as a community need to decide what our *desired* outcome
> would be (whatever the facts are, and whatever the law may be (as long we
> recognize that a trademark identifies where the goods and services come
> from)).
>
>
>
> MM: This is a discussion that never happened the first time around. No one
> has ever explained how PTI or ICANN holding the trademarks accomplishes
> anything of value for the names community. On the contrary, it was pointed
> out by several people that the principle of separability is violated by
> having a specific IFO hold the trademark.
>

​For the reasons I've already stated, I'm refraining from advocacy of any
position.  However, I think the concern about separability (which is the
state of being capable of separating, not the act of separation) is
misplaced. ICANN currently holds a variety of assets used in and necessary
to the execution of the IANA Functions.  Many of these may be transferred
to PTI; others may be retained by ICANN.  All of these need to be capable
of being transferred to a new IFO (whether for one community or all); these
are just a few assets on the list -- assets that are fairly easy and
straightforward to transfer to the right party at the right time.
Actually, transferring the marks (and domains) to the IETF Trust is more
likely to have a negative effect on separability, since a trademark owner
must approve (after due diligence, inspection and analysis, not just a
rubberstamp) any new licensee or a transfer of any license; so, the IETF
Trust would have to approve any transfer of the IFO, even one solely for
names (or numbers).

Greg

>
>
> I suggest we put together an ad hoc team to deal with this.
>
>
>
> MM: I would insist on being on this team.
>
>
>
​​
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