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

Jonathan Robinson jrobinson at afilias.info
Wed Jun 24 13:04:57 UTC 2015

Thanks Greg,


Indeed, Lise and I do plan to respond to the ICG letter in good time and we can touch on that at the CWG meeting tomorrow.




From: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Sent: 23 June 2015 19:27
To: Jonathan Robinson
Cc: Andrew Sullivan; cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name


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.




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



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.




-----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




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?





Andrew Sullivan

 <mailto:ajs at anvilwalrusden.com> ajs at anvilwalrusden.com


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