Milton:

Thanks for your reply. I respectively disagree with your opinion that "the trademark record is not relevant" just as I would disagree with anyone's opinion that the history of a domain name, in this case iana.org, its use and registration is "not relevant." However I now understand why the ICANN UDRP policy is such an "unfair, unpredictable mess" if your opinion of what is or is not relevant in regard to trademarks and domain names is indicative of the understanding of others within ICANN's UDRP policy-making body.

Let's be clear, we are only talking about legal ownership of the IANA marks and registration of the domain name. Neither the marks nor the domain name are needed, in your words, "to move the IFO." New marks and new domain names are created every day. In addition, your opinion is not supported by the historical record beyond just the trademark history, nor the sound trademark legal principles which Greg Shatan expounded upon, at length, yesterday on this list.

Since you have played the "Jon Postel card," I will remind you that Jon was employed by the USC Information Sciences Institute (ISI), a unit of the University of Southern California's Viterbi School of Engineering, from March, 1977, until his death on October 16, 1998. Beyond just the legal issues, I think it is pretty clear what Jon Postel wanted, since during his tenure at USC-ISI he also served as a Trustee of the Internet Society and on the IAB, yet Jon never asserted legal ownership of the IANA marks by any entity other than USC, and it was his intent that ICANN become the legal owner of the marks. If Vint Cerf or Steve Crocker disagree with this, I would obviously defer to their opinions. I would also note that your recall of history is deficient--what Jon also wanted to do was clarify that creation of new gTLDs was not controlled by Network Solutions--by that reasoning, ICANN, the creator of new gTLDs, should continue to hold the property Jon wanted it to have. Finally, beyond the problematic legal reasons pointed out by Greg yesterday, in the IETF Trust holding legal ownership of the IANA marks, I would note that the sole beneficiary of the IETF Trust, according to its website, is only the IETF, not the global multistakeholder community. As a member of the global multistakeholder community I have a real problem with that, as I do not see why it is in the best interests of the names community nor the global multistakeholder community, for ICANN to transfer legal ownership of trademarks and a domain name registration to an unaccountable outside third party. I am wondering what really is driving this concept because it is certainly not consensus within this CWG, it is not the merits of the arguments, it is not consistency with the general principles agreed upon.

Sorry if my tone sounds harsh, I do not intend that--I very much respect and enjoy hearing your opinions Milton, even when I disagree. Below is part of the New York Times obituary for Jon Postel which I ran across in preparing this post.

Best regards,

John Poole

Jonathan B. Postel, Who Helped to Create and Administer the Internet, Is Dead at 55 - NYTimes.com: "... Dr. Postel assiduously avoided conflicts of interest. In 1995, as the Internet was growing into a commercial business, a reporter asked him why he had repeatedly turned down opportunities to pursue wealth. He replied that starting a company to profit from his activities would have amounted to what he called a ''violation of public trust.''"

On Thu, Jun 11, 2015 at 11:53 AM, Milton L Mueller <mueller@syr.edu> wrote:

I see that neither Alan nor Greg has addressed the separability issue. I will take that as a concession that it cannot be answered. There is, as I pointed out twice, a contradiction between ICANN owning the marks and the ability to move the IFO. That is true whether or not ICANN offers a royalty-free license – that still puts ICANN in control of its use rather than the technical community and ICANN/PTI is an IFO. And that is central to the controversy. Both the IETF and the CRISP team wanted the marks separate from ICANN because ICANN is an IFO and they did not want a specific IFO to own those marks.

With respect to that point, John Poole, I am afraid your review of the trademark record is not relevant to this controversy. Just to fill in your historical record a bit more, USC Information Sciences Institute was the institutional home of Jon Postel, who was working on behalf of the IETF and was one of the developers of both the IP protocol and the numbers and names registry. So if you want to make that history relevant, you would have to note that his position was far closer to that of the current IETF than to ICANN. Indeed, the All the trademark records reveals is something that we already know and which has no bearing on what we are doing now: which is, that when ICANN was created, it was assumed that Postel would move to become part of it, and that ICANN would “be” the IANA. But as I have explained elsewhere, that did not happen; ICANN became the DNS policy making entity and the IANA was a small appendage to it. We are in a very different situation now and the TM arrangements need to adjust.

I am amused by the fact that Greg says we can avoid this issue because our remit does not extend to the other operational communities – but then insists on doing something that directly contradicts the proposals of the other operational communities.

I am wondering what really is driving this concept because it is certainly not consensus within this CWG, it is not the merits of the arguments, it is not consistency with the general principles we agreed on.
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