> -----Original Message-----
> From: Ianaplan [mailto:ianaplan-bounces@ietf.org]On Behalf Of John C
> Klensin
> Sent: samedi, 15. novembre 2014 00:21
> To: Milton L Mueller
> Cc: ianaplan@ietf.org
> Subject: Re: [Ianaplan] Proposed text reflecting IETF91 discussion
>
> --On Thursday, November 13, 2014 21:44 +0000 Milton L Mueller
> <mueller@syr.edu> wrote:
>
SNIP
>
> At the risk of making a constructive suggestion rather than just
> arguing that this topic is less important than appears at first
> glance, if the various IANA "customers" were significantly
> concerned about this issue or wanted to be extra-careful about
> contingency plans, they should be working with ICANN to
> restructure the naming arrangements at IANA.ORG so that the
> three pieces referenced from the www.iana.org home page became
> subdomains that could be referenced separately, e.g., as
> http://protocols.iana.org and http://addresses.iana.org rather
> than http://www.iana.org/protocols, etc.  If the "customers"
> agreed that they wanted it, I would expect ICANN to respond to
> that idea with enthusiasm: it doesn't weaken their position in
> any way as long as they are perceived as doing a good job and it
> would constitute a show of good faith wrt the community in
> general.    That change would turn the operational stability
> question from some variation on "who owns the name and how is
> ownership handled long-term" to "anyone who owns the name has to
> make guarantees about delegation of subdomains should the
> 'customers' conclude that is necessary".  I contend it would be
> lots easier to get consensus about the latter, in part because
> it doesn't involve nearly as much "ownership" clutter.

In my opinion, that is a very constructive suggestion.  And it is exactly
the sort of thing that the IAOC could have suggested under version "02"
(with perhaps some tweaking of the language in "02" to make it less
prescriptive).

Whereas "03" implicitly calls for making no changes at this time.

But of course nothing prevents ICANN from making the changes suggested above
on its own.

SNIP

> That, of course, assumes that "ownership" of IANA.ORG and/or any
> trademarks would withstand a serious challenge from the
> community if the arrangements were to change.  ICANN has a
> formidable array of legal resources, but, if the community were
> to make a major effort to claim the the "IANA" term was a
> generic one that belonged to the Internet community as a whole
> rather than one particular operator, especially one that was not
> a US Government designee operating under US Government
> supervision, my ability to forecast the future isn't nearly good
> enough to guess how that would come out.

In my view, such a claim might have been made in opposition to the trademark
filing, but it was not made.  So the trademark is valid and its grant cannot
be challenged now.

A term can become generic, and lose trademark protection, if it is widely
used to designate something that is provided by many companies (aspirin
being a well known example).  But that's not the case here.  The term "IANA"
is used exclusively to refer to what is provided by ICANN.  So I don't think
there is much chance of success in arguing that it is a generic term that
has lost its trademark protection.

Which leads me to think of something that I had not thought of earlier.
Absent any specific contractual committments, it seems to me that the ICANN
Board has a fiduciary duty to protect ICANN's intellectual property,
including its trademark.

So ICANN might well wish to take actions to prevent anybody else from using
its marks, if the IANA function were transferred elsewhere.

I think that we agree that this group is not chartered to explore complex
legal issues.

But it seems to me that this group should invite the competent body (IAOC)
to explore the issues and take appropriate action, if required.

The existing IANA functions contract does have language regarding
intellectual property rights (sections 1.9.4 and 1.9.5 of ICANN's Proposal,
which is incorporated by reference in the contract).

So it seems to me that competent experts (that is, lawyers) should evaluate
whether or not any additional agreements are needed after the existing
contract between NTIA and ICANN ceases to be in force.

So the output of this group should call for such an evaluation.  That's what
"02" did (albeit perhaps with language that was too prescriptive), but what
"03" does not do.

That is, "03" prejudges the outcome of a proper legal analysis, by
concluding that there is no need for anything to replace what is in the
current IANA functions contract.