At 05:41 PM 11/22/2015, Bruce Tonkin wrote:

Hello David,

DP: The UDRP is a good example of how this line works, for me. ICANN does have the power to set up a process to resolve disputes over domain names, because the outcomes of those disputes necessarily and inherently affect the content of the DNS databases directly. ICANN does not have the power to set up a process to resolve disputes over consumer fraud complaints, because the outcomes of those disputes do not affect the content of the DNS databases.

BT: That sounds reasonable - although the decisions of UDPR do relate to how the domain name is used, which inevitably involves considering the content of websites or emails that make use of that domain name. e.g. using "apple" as an example. I can have a domain name like "apple.expert" that refers to an expert on the topic of Apples as a fruit - but couldn't use that domain name without approval for being an expert on Apple computers.

DP I think I might disagree with you about that, but I don't think that matters for the current question. I don't actually think that Apple gets some kind of a "veto" over my attempt to register the domain "apple.expert." But we don't have to decide that question here; what I think we DO agree on is that the question is indeed within ICANN's "picket fence" - that ICANN has the power to make that decision (or to set up a process like the UDRP to make that decision), because that dispute (like the disputes handled by the UDRP) is a dispute over the name itself, and how names are allocated, and it necessarily affects the content of the DNS databases directly;

BT So the dispute does relate to the domain name, but resolving that dispute requires an understanding of how that name is used.

DP Correct. I'd say it a little more forcefully: the dispute doesn't just relate to the domain name, it is about the domain name.

BT A counter example Is suppose could be a name like "computer.expert". A website referenced by that domain name could potentially use trademarks of Apple, but that would be a dispute about the content of that site, and not the domain name. The main requirement would be that the contact information for the domain name is accurate, so that Apple could take the appropriate legal action.

DP We agree on that, too. Whether someone can or cannot use the Apple trademark on a site at computer.expert (or at davidpost.com, for that matter) is NOT a question about the name "computer.expert" itself, or about how the name "computer.expert" is to be allocated; the exact same question about the use of Apple's trademark can arise at davidpost.com, or at icann.org ... That is a question that concerns what the stringholder can do once the string has been allocated to him/her, and that is NOT within the scope of ICANN's power. David

Regards, Bruce Tonkin

David

******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************