[At-Large] New gTLD implementation Consultation Session London 15 July 2009

[Karl Auerbach]

On 07/16/2009 05:11 AM, Olivier MJ Crepin-Leblond wrote:

> Someone asked this specific question&  Jonathan Cohen, Senior Partner
> at Shapiro Cohen replied that this was false: according to him, the
> ICANN bylaws&  principles mention protection of Intellectual
> Property&  Marks, and that therefore, the IRT's proposals fall
> completely *in line* with ICANN's *core mission*.

Jonathan was on ICANN's board of directors when I was.  Jonathan, who 
can be very friendly and congenial on many things, is solidly behind 
ICANN as an intellectual property protection cop.

But does that assertion make it so?

ICANN can put anything it wants into its mission statement.

(Have you seen the ICANN mission statement generator: 
http://www.cavebear.com/archive/rw/mission-generator.html )

It is revealing to look at what ICANN says, particularly to governments, 
in more private places.

In ICANN's United States tax filings ICANN says nothing about trademarks 
and tracks it statement of purpose very close to the mantra of technical 
coordination for the purpose of maintaining technical stability.

It is also useful to look at ICANN's statements to courts in which ICANN 
argues that it is merely a vehicle of technical coordination.

There is nothing "technical coordination" about protecting trademarks 
from people who use words to communicate with one another.

ICANN is viewed by the intellectual property protection industry (an 
industry not to be confused with the intellectual property *creation* 
industry) as a pliant tool to obtain trademark protective rules without 
the cost and effort, not to mention the delay, of trying to get national 
legislatures to enact laws of that nature.  And ICANN provides a way to 
throw trademark-vs-domain name disputes into a high-speed forum, one 
that arguably lacks due process for the accused domain name holder.

(This latter aspect I've seen myself.  I am a member of the California 
Bar and part of its Intellectual Property section.  I have been to 
meetings in which various attorneys suggested ways to bluff an accused 
domain name holder out of his/her name by throwing the issue into the 
ICANN UDRP meat grinder.)

In addition, one must ask, from whence comes this authority to be the 
internet's trademark cop?  There is no delegation of such authority from 
any government, most notably not from the US Dept of Commerce's NTIA 
agency, which, by the way, has no statutory power to endow that kind of 
trademark cop powers onto ICANN.

So we see that ICANN's trademark policeman's badge has no more meaning 
than a plastic badge found in a child's breakfast cereal box.

		--karl--