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

[Seun Ojedeji]

Hi,

I think this is a good summary on IANA trademark that could be interest.
Please pay attention to the last paragraph.

Regards

sent from Google nexus 4
kindly excuse brevity and typos.
---------- Forwarded message ----------
From: "John C Klensin" <john-ietf at jck.com>
Date: 22 Jun 2015 19:21
Subject: Re: [Ianaplan] [CWG-Stewardship] ICG request concerning IANA
trademark and iana.org domain name
To: "Mwendwa Kivuva" <Kivuva at transworldafrica.com>
Cc: <ianaplan at ietf.org>



--On Monday, June 22, 2015 16:54 -0300 Mwendwa Kivuva
<Kivuva at transworldafrica.com> wrote:

>...
> Today I asked to Greg Shetan, Chair Intellectual Property
> Community at ICANN on what he thought on the request to
> transfer the Intellectual Propert out of ICANN. His view was
> we should look at trademark law and take the direction that
> works well for all parties. His Personal view was the IANA
> Function Operator should hold these trademarks. I hope I have
> not misquoted him.

Hi.  I think this illustrates the principle that the answer to
questions often depends on exactly what question one asks.
Let's review how we got here and please pass this note onto Mr.
Shatan.

Today, the IANA Function Operator is ICANN so, by the advice
above, the right party has the trademarks.  However, various
parts of the community have gotten concerned that ICANN might
use the ownership of the trademarks to prevent, or set
conditions on, all or part of the IANA Function from being
turned over to some separate operator.  As I understand it, the
NTIA, under the current contract, would not allow the trademark
or domain name the IANA Function to be transferred to a separate
operator without the trademarks, domain names, and,
incidentally, the contents of various registries going along
with it.

So, unless other arrangements can be found that make sure that
any transfer of the IANA function occur with the full support of
the outgoing incumbent and take any IPR, including the trademark
and domain name with it as part of the deal (and assuming the
trademark, etc., really are important), "the name should be held
by the IANA Function Operator" could turn out to be a guarantee
that an incumbent IANA Function Operator could hold onto that
role as long as it liked, dictating whatever conditions it liked.

The following summary is crude, but, AFAICT, the position of the
communities so far is:

IETF: At least for us, the trademark and domain name are not
nearly as important as some parties believe.  Beyond that, ICANN
has been well-behaved in this particular area, we really don't
believe that is likely to change (implying that, should there
need to be a change in the IANA Functions Operator, ICANN would
cooperate in transferring the names rather than trying to dig in
and hold onto them as a negotiating point even though that would
cause significant inconvenience and perhaps damage to Internet
security and stability), and putting a lot of energy into this
issue isn't worth it.

The IETF does, however, have a handy structure that holds
various intellectual property assets in trust for the broad
Internet community.  That structure has a very good track record
and, if the other communities involved see a need to transfer
the trademarks and domain names out of ICANN (presumably because
of lack of trust in ICANN future good behavior), we would be
willing to hold those assets too.


RIRs: apparently see somewhat more risk than the IETF does
(perhaps because the IETF believes it is in a better position to
just walk away if things got really bad) and would prefer to see
the trademark and domain names transferred to the IETF Trust to
administer on behalf of the broader community.

CWG: Sees creating PTI, transferring the domain name and
trademarks to it, for exclusive use, and setting up a detailed
set of licensing arrangements that best solution to the problem.
If that mischaracterizes the position, please explain.

Otherwise (personal option only, but one informed by working
with IANA and on IANA policies long before anyone dreamed of
ICANN and having been somewhat involved with the IANA transition
to ICANN and the first few rounds of this discussion):

PTI is an interesting idea.   It it were the IANA Function
Operator, the above answer to your question suggests that it
should hold the trademarks, etc.  However, as long as it is
ICANN-controlled, its holding the trademarks does not, by
itself, provide any protection against the trademarks being used
as leverage to prevent moving the function away from ICANN (and
its subsidiaries and affiliates) entirely.  So, ignoring any
other issues associated with PTI, if the concern is that the
trademarks not be used to restrict either the reasonable
behavior of the IANA "customers" or the ability to remove the
IANA function entirely from ICANN's scope and assign it, intact
and without a great deal of strife, to some other entity, the
PTI model just doesn't help.

Two additional comments:

One of the things I understood Larry Strickling to say yesterday
afternoon is that the focus of the transition effort should be
on transition requirements and that it would probably be good if
various parts of the community avoiding using "transition" as an
excuse to engage in overall ICANN reform and reorganization.  I
can see several motivations for PTI if we were trying, again, to
reform and reorganize ICANN, but, if that it not the goal, then
the odds of success in getting a transition plan completed and
approved seem to me to be much higher if we keep this simple
rather than trying to create new organization elements and then
trying to sort of the relationships between them and everyone/
everything else.  Again, just my opinion, but....

Also, with no disrespect to anyone involved, if you came to
people who were spending a very large fraction of their lives on
IETF protocol work and asked "is Internet protocol work
important?", it is unlikely that you would get many negative
answers.   Asking someone involved as staff or a Board or
Advisory Committee member whether a well-managed and fairly
allocated Internet address space is important would also be
unlikely to get a negative answer.  Similarly, if I asked an
actively practicing Intellectual Property lawyer if trademarks
are important, I would certainly expect a "yes" answer and be
surprised if I got anything else.  That doesn't make any of
those "yes, it is important" answers wrong -- they are probably
correct -- it just makes the answers sufficiently close to
obvious to make the questions barely worth asking.

best,
    john



_______________________________________________
Ianaplan mailing list
Ianaplan at ietf.org
https://www.ietf.org/mailman/listinfo/ianaplan
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150622/8b857e1c/attachment.html>