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

Gomes, Chuck cgomes at verisign.com
Mon Jun 22 14:35:17 UTC 2015 

Does anyone have a suggested approach for gathering the facts?

Chuck

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, June 22, 2015 10:33 AM
To: Avri Doria
Cc: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name

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<mailto: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>
> <mailto: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> <mailto:avri at acm.org<mailto:avri at acm.org>>", "cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
> <mailto:cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>"
> Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark
> and iana.org<http://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<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> <mailto:avri at acm.org<mailto:avri at acm.org>>; cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
> <mailto:cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>>
> *Subject:* Re: [CWG-Stewardship] ICG request concerning IANA trademark
> and iana.org<http://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>
> <mailto: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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>
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