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

[Greg Shatan]

As a practical matter, I am actually in favor of Andrew's proposal, since
that is the simplest way to signify to a reader that the CWG has not yet
formed a position on this point. It is something that we need to work on,
based on a speedy (but not hasty) collecting and analysis of all the facts,
including facts best learned from members of the protocols and numbers
communities, and consultation with outside counsel.

The current proposal was perceived by some as being inconsistent with the
other proposals and as a result, we were requested by the ICG to rather
rapidly resolve this perceived inconsistency. Upon reflection and
discussion with a variety of people, I don't think we would be best served
dealing with this in a sprint.

However, I also take Jonathan's point that the document in fact does not
state a position on this point, or indeed on any other point in the Term
Sheet in Annex S, given the particular caveats attached to Annex S. I
further take our esteemed co-Chairs' point (expressed by Jonathan for
himself and Lise) that it is too late to change the physical document.
This makes sense to me, given that it is in front of the Chartering
Organizations for an "up or down" vote after some weeks of consideration.
Further, I trust their judgment to navigate this critical stage.

I might tentatively suggest that the co-Chairs consider the possibility of
a communication responding to the ICG and providing further comfort that
this is not a position being proposed by the CWG and should essentially be
"read out" of the document.  Thus, the Proposal (being in the end, silent
on the matter) is not inconsistent with the other two proposals.

Hopefully, this will be sufficient for the ICG to allow us to work out our
proposal on this point without a fire drill.  I think there is a spirit of
goodwill to do so and I am looking forward to the opportunity.

Greg

On Tue, Jun 23, 2015 at 5:02 PM, Jonathan Robinson <jrobinson at afilias.info>
wrote:

> Andrew,
>
>
>
> Thanks for this suggestion. Lise and I believe we cannot change our
> proposal at this late stage.
>
>
>
> However, it will be very good if we (with the help of this group and
> anyone else) can communicate as widely as possible that the TM related
> language in the Final Proposal is preceded by other text and contained in
> square brackets such that the Final Proposal effectively does not make a
> specific proposal with regard to the trademark. Therefore, the Final
> Proposal is specifically not in conflict with either of the CRISP &
> IANAPLAN proposals on this subject.
>
>
>
> This is why (copied from the proposal with my emphasis):
>
>
>
> --
>
>
>
> Annex S: *Draft Proposed* Term Sheet
>
>
>
> What follows below is an *initial draft proposed term sheet* that *could*
> be the precursor to the ICANN-PTI Contract. This is based on a legal
> memorandum prepared by legal counsel to the CWG-Stewardship on May 18,
> 2015. To the extent this term sheet is inconsistent with the current
> proposal, the current proposal governs. The term sheet will be subject of
> negotiation between PTI and ICANN (with PTI having independent legal
> advice).
>
>
>
> •             Terms in [square brackets] are *placeholders only*
>
>
>
> [ICANN will grants PTI an exclusive, royalty-free, fully-paid, worldwide
> license to use the IANA trademark and all related trademarks in connection
> with PTI’s activities under the ICANN-PTI Contract.]
>
>
>
> --
>
>
>
> i.e. the trademark related language is placeholder text in square brackets
> within an initial draft proposed term sheet that does not have the
> consensus support of the CWG save for as presented in the Final Proposal.
>
>
>
> Jonathan
>
>
>
> -----Original Message-----
> From: Andrew Sullivan [mailto:ajs at anvilwalrusden.com]
> Sent: 23 June 2015 15:07
> To: cwg-stewardship at icann.org
> Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark and
> iana.org domain name
>
>
>
> Hi,
>
>
>
> On Mon, Jun 22, 2015 at 11:33:13AM -0300, Greg Shatan wrote:
>
> > 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.
>
>
>
> After some hallway conversations yesterday, it seems to me that, while the
> above is a good idea, such fact-gathering and so on is really part of
> implementation.
>
>
>
> Therefore, it seems to me that (especially since the sample term sheet is
> called out as not being normative anyway) it would be possible to remove
> the term sheet annex (or approve the document without it or something like
> that) in order to send the document to the ICG.  After all, by removing the
> text and standing mute, the proposals as such are not inconsistent.
>
>
>
> That would allow us to get on with one important task (transmitting to the
> ICG) while working on another (sorting out the IPR issues).
>
>
>
> Does that seem reasonable?
>
>
>
> A
>
>
>
> --
>
> Andrew Sullivan
>
> ajs at anvilwalrusden.com
>
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