Subject: Re: [Ianaplan] update on trademarks and domains & IETF trust

From: Andrew Sullivan <[email-masked]>
Date: Wed, 17 Feb 2016 13:18:07 -0500

Dear colleagues,

On Tue, Jan 26, 2016 at 05:16:47PM +0200, Jari Arkko wrote:
> https://www.nro.net/pipermail/iana-ipr/

I will note that if you want to follow that list now as a subscriber,
you can.  You too can get our deathless discussion of IPR issues
delivered directly to your INBOX!  (It's still closed posting, however.)

We've also started work on a document of principles.  The draft is not
complete yet, and there are still some issues to work out, but I at
least would be extremely happy to hear remarks about what you see
there, if you have time to read and comment.  You can see the document
at
https://docs.google.com/document/d/1oR3nmHl1fK7BEWOBK65KyvnmhTJZX70j9q4Ne9i4ad4/edit?usp=sharing.
Unfortunately, it seems that in Google docs when you have read-only
access you can't see the comments either.

There are a couple issues that I think are quite important still to
sort out.

First, there's a set of things about the registration of iana.org.
The goal here is to use a registrar that can require multiple
approvals from different parties before changes are made.  That way
the IANA operator can have (and be assured of) technical control of
the domain while the registration is yet held by the Trust.  I know
there is at least one regisrtar that offers this sort of service
(Network Solutions, "Web Lock"), but if there are more I'd be happy to
hear about it so that we could point that out.

Second, there's the issue of the exclusive vs. non-exclusive license.
We have some registries that we treat as IANA registries but that are
strictly speaking not.  The enum registry, for instance, is not
operated by IANA.  Also, according to RFC 6557 the TZ Database is
operated by ICANN as if it were an IANA function under the IETF-ICANN
MoU but it is carefully called out as not an IANA function.  I'm not
sure whether this affects the license discussion (I'll be seeking
expert legal advice on this, but I wanted to note it as unsettled
business).

Third, and perhaps most important, is the discussion in 3.g.  There's
a tricky problem here.  The Trust will own the trademarks.  Under
trademark law, this means that the Trust will have a duty and a right
to enforce uses of the trademark.  So, if the Trust thinks that
there's a problem and it's gone unresolved, the Trust needs to be able
(in its sole discretion) to cancel the trademakk license to an IANA
operator.  At the same time, we want the individual operational
communities to have the power to select their operators.  The key
thing here in 3.g. is to see whether the balance is right given what
we want and the constraints of trademark law.

Obviously, any comments are welcome, but those are some substantive
issues that I think need attention.  Remember that this is not a
contract, but a set of principles under which we're going to work out
the final arrangements.  

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Ray Pelletier <[email-masked]>
Date: Wed, 17 Feb 2016 13:40:58 -0500

Andrew,

> On Feb 17, 2016, at 1:18 PM, Andrew Sullivan <[email-masked]> wrote:
> 
> Dear colleagues,
> 

It would be my expectation that the Trust would give notice to the
relevant operational community(s) and provide the IANA Operator with
a reasonable opportunity to cure the problem.  I would also expect
the Trust would be informed in its ultimate decision to cancel the
trademark and domain use by input from the relevant operational
community(s).

Ray
Trustee
IAD

> _______________________________________________
> Ianaplan mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/ianaplan

---

From: Russ Housley <[email-masked]>
Date: Wed, 17 Feb 2016 13:47:21 -0500

Andrew:

Hopefully 3.g will never be need in practice, but this does deserve some
careful thought.

I worry that mediation is required before the Trust can move on to step
3.g.iii.  None of these steps will be quick, which is good.  However, if
an operational community decides that the IANA Operator is not acting
promptly to resolve the issue, the the Trust should not require a
mediation step.  In other words, the could be a last straw that causes an
operation community to see a new IANA operator and the Trust should not
impact that decision in either direction.
Russ