[log in to unmask]" type="cite">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
-- ------------------------------------------------ "It is a disgrace to be rich and honoured in an unjust state" -Confucius ------------------------------------------------ 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 Phone: +1 613-476-0429 cell: +1 416-816-2852