On 15/05/2014 9:25 PM, Alex Gakuru wrote:
>
> Beyond if just "outreach" role, one actually wonders which globally 
> binding instrument mandated ICANN's derived legal authority to act as 
> enforcer on global Intellectual Property rights. Can it be contested 
> in a court of law in any of all other countries/regions outside of US/ 
> California? And if so, what next?
>

Alex is scratching at an important area here. When one looks at theories 
of governance, and at legislation and case law with regard to 
trademarks, it is probably correct to say that there is a Pandora's Box 
of unresolved issues around how ICANN is currently trying to handle the 
terms of the process for awarding domain names, the dispute resolution 
process, and in particular the trade mark ownership/infringement issue. 
This is not the place to do that analysis but it is worth flagging two 
elements that bring complexity to any progress here.

The first has to do with governance. In most governance models there is 
quite a separation of powers as between the policy (legislative) process 
and the dispute/infringement (adjudication) process. The currently 
existing approaches to handling these two powers may be one source of 
complications.

The second has to do with while there are international accords and 
agreements on many aspects of Intellectual Property, the area of 
trademarks is particularly complicated. Much of policy and enforcement 
is at the national level and, in contrast to images (or patents), words 
can be less distinct and delineated. The ICANN logo is distinct. If a 
groundnut farmers organization in India creates ICANNuts.org, and ICANN 
decide there is an issue, where should it be addressed, and what policy 
(legislation) and precedents (case law) should apply? There needs to be 
a broader and deeper stakeholder engagement for a better understanding 
of elements of the problem at this level, rather than focusing on the 
specifics of who did what, and when given the current situation. The 
trademark issue is a case in point.

It comes as no surprise that the first efforts to address these issues 
at the global level will have problems. For much of the Internet 
ecosystem, we are on a journey across partially uncharted terrain 
populated by various stakeholders protecting and extending existing 
rights into these new territories. The new structures and processes we 
are building draw from existing ideas of structure and process. The 
challenge is to “learn while doing”, and build based on that learning. 
While it is impossible to separate structure from process, we need a 
sense of mutuality of interest in finding workable structures and 
processes here (e.g., with regard to adjudication) even if within those 
structures and processes we will have disagreements over desired outcomes.

Sam Lanfranco


-- 
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"It is a disgrace to be rich and honoured
in an unjust state" -Confucius
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Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
email: [log in to unmask]   Skype: slanfranco
blog:  http://samlanfranco.blogspot.com
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