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

Mon Jun 22 14:33:13 UTC 2015

I have made this suggestion recently, and still support it.  However, we
will first need to gather our facts (and not just the facts that tend to
support a particular position), without which any independent counsel will
be (literally) clueless.

Greg

On Mon, Jun 22, 2015 at 11:11 AM, Avri Doria <avri at acm.org> wrote:

> Hi
>
> I agree with that proposal.
>
> We can also look at what the other operational communities said:
>
> - one mentions putting in a trust, perhaps like the ietf trust
> - one mentions that, speaking for the IETF trust, they are are ready to
> take it.
>
> As I said, I want it held for use by PTI and any future possible IFOs.
> If it is not possible for it to be held by the PTI with the stipulation
> that it is transferred to any future IFO, then perhaps it can be put in
> a trust, not the IETF trust, but a trust that preserves if for future
> IFOs and leaves it accessible to all of the operational communities.
>
> I am sure that all the legal brain power we have behind this transition
> could work out a simple solution.
>
> avri
>
>
> On 22-Jun-15 10:55, James Gannon wrote:
> > 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.
> >
> >
> > -James
> >
> > 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.
> >
> >
> >
> > Greg
> >
> >
> >
> > 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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> >     CWG-Stewardship at icann.org <mailto:CWG-Stewardship at icann.org>
> >     https://mm.icann.org/mailman/listinfo/cwg-stewardship
> >
> >
> >
> >
> >
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>
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