[At-Large] New gTLD implementation Consultation Session London15 July 2009

[Karl Auerbach]

On 07/16/2009 09:41 AM, Elisabeth Porteneuve wrote:
> I hate to say it, but trademark/IP issues were written into the
> initial MoU, which became current JPA, item V.C.9.d quoted below.
> http://www.icann.org/en/general/icann-mou-25nov98.htm
>

> d. Recommendations regarding trademark/domain name policies set forth
> in the Statement of Policy; recommendations made by the World
> Intellectual Property Organization (WIPO) concerning:

Two points.

First is that NTIA has no legal authority to do that kind of thing
itself and thus has no power to require it of others or to delegate it
to to others.

The US Congress' arm called the "GAO" twice looked for NTIA's authority
in these matters and twice came up with the answer "we can't find any".
  The list of authorities cited in the MOU is of ones so distant from
what ICANN does as to be essentially irrelevant.

Second is that the quote you cite mentions merely says that ICANN ought
to "consider and take into account" certain then existing
recommendations from WIPO.

That quote does not, at least not to my mind, suggest participation by
anything or anyone other than WIPO.

Moreover, the item you cite is one of 10 items.  But let's look at that
item more closely:

> 9. Collaborate on the design, development and testing of a plan for
> creating a process that will consider the possible expansion of the
> number of gTLDs. The designed process should consider and take into
> account the following:

We see from that that the MOU was merely contemplating the creation of a 
plan and testing of that plan.  It does not call for full implementation 
of that plan or deployment of things like the UDRP for any purpose other 
than "testing".

By-the-way, during the discussions of this MOU ICANN made promises that 
the majority of its board seats would be chosen by the public.  (I 
remember that phone call, it was the first time I used VoIP.)  Too bad 
that we did not have the leverage to get NTIA to write that down into 
the MoU.  Sigh.

		--karl--