RE: [gnso-rn-wg] Comments on ICANN/IANA Reserved Names Reports/and other thoughts

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

I have been thinking more about what pragmatic and practical means as it
comes to our work in the TF, and it seems to me that we might benefit from
reviewing our statement of work again, as we consider, within each of our
sub groups, what we can get done by Lisbon, and what needs a longer process,
and what the options for the longer process is. Today, Chuck reminded all of
us that we need to think about how we 'recommend' that further work that
isn't completed by Lisbon happens for 'our' sub group topic.

I think we can also consider that some names may need to remain in 'reserved
status' while a longer process is thought about, IF indeed the Council
ultimately decides to consider significant change in the existing reserved
names process.

For example, taking one of the words Mike Palage mentioned -- ISTF -- if it
isn't simple to agree on what to unreserve, it can be left on the reserved
string while a longer process is undertaken to consider individually such
names and then the name can be released without prejudice to all new gTLDs.

I'm more concerned about getting the broad and general principles right than
spending a lot of time on a single word, since I think that we have yet to
fully discuss what the implications are to how we treat, for example,
example in IDNs. OR any other similar 'general operational' word string...
and I am expecting a busy time of conf. calls, consultations and dialogues
in the next few weeks..

I was just wondering how others would view thinking about a general approach
for dealing with areas where there won't be or it is going to be hard to get
to consensus at the WG level on a change -- punting with a plan to revisit
isn't a bad idea in order to free up time to 'pick the low hanging fruit'.

Marilyn Cade


-----Original Message-----
From: owner-gnso-rn-wg@xxxxxxxxx [mailto:owner-gnso-rn-wg@xxxxxxxxx] On
Behalf Of michael@xxxxxxxxxx
Sent: Friday, February 23, 2007 2:35 PM
To: gnso-rn-wg@xxxxxxxxx
Subject: [gnso-rn-wg] Comments on ICANN/IANA Reserved Names Reports

Hello All:

Although I intend to participate on tomorrow's call via telephone,
provided that my red eye flight from LA is not delayed, I wanted to
provide the following comments in connection with the ICANN/IANA
Reserved Names subgroup.

While I appreciate the deference that we should provide ICANN staff as
they juggle many responsibilities in a less than ideal environment, I
must respectfully disagree with the statement of ICANN staff regarding
their position that these names should continue to be reserved. The
basis for my concerns are set forth below.

First, given that the current ICANN staff does not have access to the
documentation that provides the basis for this original reservation, I
question the prudence for this Working Group to affirmatively continue
a reservation in which we do not have the full set of facts before us.
The legitimacy of the output from this working group must be based on
documented fact. If ICANN is unable to locate the documentation that
formed the basis of the original reservation, ICANN should be requested
to provide a basis for the continued reservation. I submit that merely
preserving the status quo is unacceptable given the potential dangerous
precedent that might be set as elaborated below.

To illustrate the potential arbitrary and capricious nature of this
original list of reservations. consider the reservation of the string
ISTF. As someone that has participated in ICANN since shortly after its
creation, I was at a total loss of words for what this string
represented. After some Google searching I believe I found that this
string appears to be an acronym for the "Internet Societal Task Force."
Now what I found somewhat surprising was the fact that despite ISOC
being the registrant of the ISTF.ORG domain name, it appears that
domain name was not resolving. ISOC instead chose to use the ISTF
string as a third level domain name istf.isoc.org. 

Now if ICANN is unable to locate the original documentation associated
with this reservation, I believe that any continued reservation would
need to be based on an actual operational/security/stability need.
Questions that ICANN should need to answer include have any of the ISTF
second level domains current used in other gTLDs (e.g. ISTF.COM (domain
name currently for sale) and ISTF.NET (parked page)) caused any
operational issues. Has ICANN contacted ISOC to ask if they would like
a continued reservation of this term. If ISOC requests the continued
reservation of this term could ISOC provide any evidence of harm in
connection with the use of ISTF.COM or ISTF.NET?

Now another consideration that must be taken into account is Paragraph
34 of the original WIPO Domain Name report that states "[t]he goal of
this WIPO Process is not to create new rights of intellectual property,
nor to accord greater protection to intellectual property in cyberspace
than that which exists elsewhere.  Rather, the goal is to give proper
and adequate expression to the existing, multilaterally agreed
standards of intellectual property protection in the context of the
new, multijurisdictional and vitally important medium of the Internet
and the DNS that is responsible for directing traffic on the Internet."

ISTF is currently a nationally registered trademark within the United
Kingdom, see
http://www.patent.gov.uk/tm/t-find/t-find-number?detailsrequested=C&trademar
k=2371647.
By reserving the string ISTF from registration negatively impairs the
rights of trademark owners to register their trademark as a second
level domain. Although trademark owners do not have an absolute right
to register their trademark as a domain name, where ICANN is going to
affirmative reserve and deny a trademark owner this right they must do
so on clearly documented evidence, not merely based upon
unsubstantiated recollections.

I could continue with further examples but need to turn my attention
back to the geographic reservation subgroup. I hope that these concrete
examples demonstrate the shortsightedness of affirmatively approving
these reservations without a proper record before us. I think we need
to take a pause and evaluate the implications of the proposed straw
poll that has been advanced to this group.

Best regards,

Michael D. Palage