Re: [soac-mapo] charter and mission

[Evan Leibovitch <evan@xxxxxxxxx>]

On 14 July 2010 10:04, Philip Sheppard <philip.sheppard@xxxxxx> wrote:

 Evan it is terribly sweet of you to be so outraged by my comments but do
> bear in mind this list is essentially about opinions.
>


Trust me, that was not outrage. :-)

I just find it frustrating that people are only now discovering the
long-time opposition to MAPO by ICANN stakeholders, or claiming that the
current proposal has too much momentum to eliminate after having ignored the
warnings for so long. This is a debate that should have happened many years
ago. (I'm pleasantly surprised to see it happening at all.)

I am also trying to understand the demand to have ICANN perform a function
which is beyond both its scope and competence. It is an invitation for far
greater problems than the provisions try to solve.

I can get there there is a "something should be done" gut instinct about
this issue -- most people can think of some string that, should it be a TLD,
they would personally find repulsive. However, any possible ICANN-based
solution will have problems that are far worse than the original one, and
national governments already are capable of dealing with MAPO. This is truly
an area in which I hope that logic and common sense will triumph over gut
instinct.


I'd like to address the issue that ICANN is being asked to wade into unknown
> territory.
> It is not.
> Most trade mark office examine trade marks on morality grounds (it is
> called one of the absolute grounds for refusal).
>


ICANN is not a trade mark office, much as some of its stakeholders would
like it to be one. ICANN's trademark efforts exist to enforce what treaties
and national governments have created; it is not creating a trademark regime
itself or defining rights that have not already been granted by governments.
It is explicitly not, for instance, applying its own morality codes on what
goes into the trademark clearinghouse.

The point I am making is that MAPO is a political and ethical issue, one
that is designed to be addresses by national governments. The diversity of
national approaches on MAPO indeed are basic choices that help define the
character of their countries. MAPO could be addressed by treaty (or treaty
organisations such as WIPO or ITU or EU), but "standards" vary so much that
no such treaties or bodies exist. Partners on economic issues will not
necessarily share MAPO approaches. In an instance as basic as movie
ratings<http://en.wikipedia.org/wiki/Movie_ratings>,
even the Euro zone countries can't agree and each has their own code. The
closest we can come globally on MAPO are universal declarations of rights,
which require the United Nations to define them and are known to be
difficult to enforce.

This is the (mine)field in which you are saying ICANN should claim global
authority and competency. No thanks.


> By way of interest I paste below the guidelines to the examining officers
> in the EU trade mark office ( an interesting example as the issue of
> meanings in all EU languages is taken into account).
> I note that under these guidelines the following EU trade marks have been
> registered suggesting the restriction is not overly severe. I believe .xxx
> would sail through. All that is proposed for ICANN is something akin to this
> with the examining officer not being a staffer (as in the EU trade mark
> office) but a third party. (PS ICANN staff were made aware of all this many
> moons ago).
>

I have previously suggested a possible (minor) role for the Independent
Objector in this situation, though I would be loathe to refer to the IO as
an "examining officer".

Certainly what is now in the DAG -- an objection based process that can be
gamed -- is not close to what the EU does.

Cheers,

- Evan