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

James Gannon james at cyberinvasion.net
Mon Jun 22 13:55:15 UTC 2015

In an attempt to find a common ground, I would like to make a suggestion that we receive independent legal advice external to the contributions of the lawyers in this group (Whom I hold in great esteem but none of us here can be impartial)  to provide us with a list of possible homes and processes for the IANA marks. That way we can work from a position of fact and knowledge and we will be making our judgements based on substance and consensus on what the best home for the marks are as opposed to debating the legal viability of the models.


From: <cwg-stewardship-bounces at icann.org<mailto:cwg-stewardship-bounces at icann.org>> on behalf of Milton L Mueller
Date: Sunday 21 June 2015 17:03
To: Greg Shatan
Cc: "avri at acm.org<mailto:avri at acm.org>", "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>"
Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name

I mean neutral with respect to a specific IFO. I don’t mean neutral wrt the identity of the IANA.
This theoretical debate is really pointless and begs the question: what is accomplished by keeping it in ICANN?  We already know what is impeded (separability)

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Sunday, June 21, 2015 11:07 AM
To: Milton L Mueller
Cc: avri at acm.org<mailto:avri at acm.org>; cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name

A neutral repository _might_ be appropriate for copyrights or patents; it's not appropriate for a trademark, which by definition is not "neutral."  It represents the entity from which the services are provided.  Even when used by a licensee, the owner/licensor is considered to be the origin of the licensee's goods and services (thus the requirement of active approval and quality control of a licensee's processes and output, as well as the use of their mark).

I'll stick with my earlier suggestion that a group should collaborate to develop a common understanding of the facts, rather than cite certain facts for the purpose of advocacy.  I'd also like to identify issues and work together to resolve them, rather than try work through this solely in advocacy mode.

It was in that spirit that I stated that we do not know whether the IETF Trust has the ability to take on the duties of a trademark owner.  I did not assert that they lacked that capacity, only that it is an unknown.  That said, we cannot rely on an unknown.  (I would also note that the IETF Trust is not the IETF; rather it is a trust set up for the benefit of the IETF. To the extent that the Trust is not seen as a legal entity, the trustees (not IETF) would be seen as the owner of the trust's assets.)

I think I've already responded to the other point here (recognizing that the email was a response to Avri), so I'll stop here.


On Sun, Jun 21, 2015 at 10:54 AM, Milton L Mueller <mueller at syr.edu<mailto:mueller at syr.edu>> wrote:
> -----Original Message-----
> Milton, since you are insisting so much from a Names perspective that we
> agree to transfer this from ICANN to the IETT Trust, I would like to
> understand what advantage you see for the Names commuity in this from
> the CWG perspective. I understand why you might take the position you do

That's a fair request and a fairly easy one to answer. In two words the answer is 'enhanced separability.' I've said this before so perhaps you need a better explanation.

The mixture of policy making and implementation functions within one names-centric organization (ICANN) has been recognized as problematic. One of the key principles underlying the current reforms is that the IFO for names should be separate from the policy maker, and further that the current IFO should not have a permanent monopoly. We should be able to switch to a new names IFO if justified. And numbers and protocols already have this arrangement. If you want the capacity to switch, then the current IFO cannot control or own the IPR associated with IANA; they are users of the IPR not its owners. That, I suggest, is the correct model for the names community.

If we want to consistently implement the basic model that the Internet community as a whole recognizes as proper (RFC 7500) we cannot have the names-related policy making entity - which is also an IFO for all 3 communities at the moment - hold the trademarks that need to be used by all three communities and which may need to be used by different IFOs. The IETF trust is a neutral repository for this IPR that allows the rights to be assigned to any IFO as needed.

> Also I think you misinterpret the IANAPLAN position.  They say they are
> willing.  They do not request the move.

'Willingness' means that their proposal is compatible with the numbers proposal. CWG's is not. There's no way around the fact that CWG names has worked without regard to what the other two communities proposed, and that its proposal is out of step. That by itself does not mean it's wrong, but it does suggest that we _first_ need to think of changing what randomly made its way into our proposal rather than forcing two other communities to change. No one has advanced a good reason why a names community entity should control it all. The idea that IETF Trust cannot defend or monitor the trademark is a mere assertion for which there is no concrete evidence, and flies in the face of the fact that the source and origin of the IANA registries is the IETF, not ICANN.

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