Name: Lori S. Schulman
Organization: International Trademark Association (INTA)
Submission ID: 110

Please find INTA’s comments attached.
With kind regards,Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
REDACTED
Washington, DC REDACTEDREDACTED, Skype: REDACTEDREDACTED, www.inta.org
Find us on:TwitterLinkedIn

Facebook655 Third Avenue, 10th Floor, New York, NY 10017-5646, USA
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Submitted to public-comments@ianacg.org:
September 8, 2015
Alissa Cooper
Chair, IANA Stewardship Coordination Group
c/o ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: IANA Stewardship Transition Proposal
Dear Ms. Cooper:
The International Trademark Association (INTA) is pleased to submit the attachedcomments regarding the IANA Stewardship Transition Proposal prepared by the IANA
Stewardship Coordination Group (ICG).
We have followed the format and answered the questions proposed by the ICG to theextent that the current report contains sufficient information to respond. We are stillconcerned that critical ICANN accountability mechanisms are not sufficiently articulated
to answer affirmatively to some key questions. We have identified those within ourcomments.
Should you have any questions about our comments, I invite you to contact LoriSchulman, INTA’s Senior Director of Internet Policy at REDACTEDor at.
REDACTEDSincerely,

Etienne Sanz de Acedo

IANA Stewardship Transition Coordination Group’s Proposalon the IANA Function Transition
September 8, 2015

The International Trademark Association (INTA) is pleased to respond to the IANA
Stewardship Transition Coordination Group (ICG) proposal (Proposal) related to the IANA
function transition. INTA thanks the ICG for their diligent work in coordinating theproposals from the names, numbers and protocol communities into the current document.
We have followed the suggested format regarding responses to the ICG’s questions andour comments are below.
Questions Concerning the Proposal as a Whole.
1. Completeness and clarity: Is the combined proposal complete? Each of the operational
community proposals contains aspects to be completed in the future when the proposal
is implemented. Is the combined proposal specified in sufficient detail such that it can beevaluated against the NTIA criteria?
INTA’s main concern with the IANA transition is that proper accountability protocols andprocedures must identified and adopted by the Internet community and ICANN before theIANA Proposal can be fully evaluated and approved. Along those lines, the finalizationof the proposals from CCWG on accountability and enforceability critically important tothe transition and INTA is submitting comments to ICANN on the CCWG proposal on
Work Stream 1 concurrently with these comments. Therefore, the proposal is notcomplete with regard to the NTIA criteria.
2. Compatibility and interoperability: Do the operational community proposals work
together in a single proposal? Do they suggest any incompatible arrangements wherecompatibility appears to be required? Is the handling of any conflicting overlaps between
the functions resolved in a workable manner?
INTA has not identified, at this time, any compatibility and interoperability concerns.
3. Accountability: Do the operational community proposals together include appropriate
and properly supported independent accountability mechanisms for running the IANA
functions? Are there any gaps in overall accountability under the single proposal?
Please see our combined response to questions 3 and 4 below.
4. Workability: Do the results of any tests or evaluations of workability that were includedin the operational community proposals conflict with each other or raise possible concerns
1when considered in combination? The first question that the ICG seeks input on concerns
whether completeness of the Proposal, whether the Proposal is compatible with the Cross
Community Working Group on Enhancing ICANN Accountability (CCWG), and whether it
has sufficient accountability.
With respect to questions 3 and 4, INTA has identified certain aspects that INTA supports
and other aspects that could use further attention to ensure that the proper accountabilitymechanisms are in place. INTA is pleased that the ICG has worked to harmonize theresponses by the three community groups and does not significantly alter the transition
proposals contained in the three community responses. The deference given to these
individual community groups is important during the transition process, especially given
the community model that ICANN uses. Further, INTA notes that the Proposal takes somesteps toward independence and accountability by adopting the portions of the Cross
Community Working Group (CWG) proposal that would create a Post Transition IANA(PTI) affiliate/subsidiary of ICANN to perform the IANA functions operator in contract withICANN and the IANA Function Review Process (IFR) to conduct reviews of PTI. The
Proposal does not replace the U.S. Department of Commerce’s role with anothergovernmental organization that may in the future be less inclined to maintain openness
on the Internet. While INTA notes that the Proposal acknowledges the need to ensureaccountability and implement the CCWG’s response/proposal once the CCWG’s process
is completed, INTA believes that further work should be done to ensure that the properaccountability mechanisms are in place.
Specifically, key details are not specified in the Proposal. INTA notes that the Names
Proposal within the ICG Proposal is contingent on accountability mechanisms outlined in
the CCWG’s accountability proposal, which is missing key details and the subject ofongoing comments and debate. Indeed, the Proposal raises – but does not answer – thequestion of what action will ICG take if it determines that the names proposal is notcomplete.
INTA also notes the following details from the Proposal that need more clarification andadditional public comment opportunities:
The Proposal calls for the operational communities to obtain full responsibility for who
their IANA functions operator will be. There remains, however, insufficient detail about
how the operational communities will exercise that responsibility. Specifically, there isinsufficient detail regarding: a) how the numbers and protocols operational communities
will contract with ICANN and/or subcontract with PTI; b) how the numbers and protocols
operational communities will be able to participate in the PTI accountability measures;and c) how the operational communities will coordinate the IANA functions should one ormore initiate separation from ICANN / PTI.

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With regard to the PTI, the Proposal fails to provide sufficient detail to support the integral
statement that “The separation of PTI as a subsidiary will ensure the independence ofthat oversight role from the contractor providing the service.” (X021, 51) As footnote 26
correctly states, “a parent and its subsidiaries are affiliates because the parent controls
the subsidiaries.” Because ICANN will control PTI, how will having PTI as a subsidiary
ensure the independence of that oversight role? The Proposal does not answer thisquestion. In fact, INTA believes that having the PTI entity formed as an affiliate of ICANN
removed an important layer of oversight that an arms-lengths transaction would provide.
Instead of an affiliated PTI, INTA recommends that a Request for Proposal be issued toserve as PTI provider (PTIP) and that, in addition to service level commitments, the PTIP
agree to:1. Be subject to all ICANN accountability mechanisms in the same manner as
ICANN itself;
2. Agree to the governing law of and exclusive jurisdiction for complaints in aU.S. State to ensure accountability and predictability with enforcement; and3. Agree to neither seek “international organization” status limiting oreliminating liability nor act on or assert any such status if granted by theUnited States government or any other equivalent by any other sovereign.
In the event that an affiliated PTI is selected instead, the CCWG should provide a moredetailed proposal for public comment requiring number three above and providing ananswer to the question of ”how will having PTI as a subsidiary ensure the independenceof that oversight role?
The Proposal calls for the Names Community to be able to initiate a separation process
for the names function in the event it is unsatisfied with the performance of PTI. INTA isconcerned, however, that the separation process is too complex and impossible to fully
implement, and can be overridden by the ICANN Board, as currently contemplated. INTA
recommends a separation process that does not require final approval by the ICANN
Board.
The Proposal calls for the multi-stakeholder community to set service level requirements
for the IANA functions operator. There remains insufficient detail on what those service
level requirements will be. INTA urges the completion of the community’s ongoing workon the new Service Level Agreement to enable their review and public comment and theninclusion in the final proposal before submission to NTIA.
The Proposal calls for ICANN to have an agreement with the Root Zone Maintainer togovern the Root Zone Management process without the participation of NTIA. So far, thetransition process and agreement have not been sufficiently specified and subject to thereview of the ICANN community. INTA submits that these details and agreement shouldbe part of the final proposal and subject to further public comment before submission toNTIA.
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The Proposal identifies the “workability” scores of each of “PTI as an affiliate of ICANN”
and “Applying changes to the Root Zone environment” as a barely passable 53%. ICG
should provide a further detailed explanation of why such low workability scores for two
key elements of the Proposal are acceptable and should be endorsed.
The Proposal calls for the maintenance of the United States as the jurisdiction of IANA.
INTA supports that proposal and believes that at all times that ICANN must commit thateach IANA function will be subject to the governing law of and exclusive jurisdiction forcomplaints in a U.S. State to ensure enforceability and predictability with contract
compliance. Further, both ICANN and any affiliated or third party provider of IANA
functions must agree to neither seek “international organization” status limiting oreliminating liability nor act on or assert any such status if granted by the United States
government or any other equivalent by any other sovereign. The IANA functions should
be subject to judicial enforcement to ensure accountability.
The Proposal does not contain a harmonized view on the status of the IANA trademarks
and domain names. INTA urges the ICG to further coordinate with the operationalcommunities, ICANN and intellectual property counsel to prepare a final and detailed
proposal for these important intellectual properties, which should be included in a newproposal to be submitted for review and public comment before submission to NTIA.
Questions Concerning NTIA Criteria
5. Do you believe the proposal supports and enhances the multistakeholder model? If
yes, please explain why. If not, please explain why and what proposal modificationsyou believe are necessary.
INTA asserts the Proposal seeks to support the multistakeholder model and that withfurther clarifications and revisions discussed above that this question could potentiallybe answered in the affirmative.
6. Do you believe the proposal maintains the security, stability, and resiliency of theDNS? If yes, please explain why. If not, please explain why and what proposal
modifications you believe are necessary.
INTA asserts the Proposal seeks to maintain the security, stability, and resiliency of theDNS and that with further clarifications and revisions discussed above that this question
could potentially be answered in the affirmative.
7. Do you believe the proposal meets the needs and expectations of the global
customers and partners of the IANA services? If yes, please explain why. If not,please explain why and what proposal modifications you believe are necessary.
Please indicate if you are a customer or partner of the IANA services.

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INTA, like all users of gTLDs for their website presence, email delivery and a myriad ofother mission-critical functions, is ultimately a true customer of IANA services. Thisincludes not only INTA but many of its thousands of members. Our comments regarding
the areas where the proposal requires further development in order to meet the needs
and expectations of IANA’s global customer service base are contained herein.
8. Do you believe the proposal maintains the openness of the Internet? If yes, please
explain why. If not, please explain why and what proposal modifications you believe
are necessary.
INTA asserts the Proposal seeks to maintain openness of the DNS and that with further
clarifications and revisions discussed above that this question could potentially beanswered in the affirmative.
9. Do you have any concerns that the proposal is replacing NTIA’s role with agovernment-led or inter-governmental organization solution? If yes, please explain
why and what proposal modifications you believe are necessary. If not, please
explain why.
Yes, please see the above response to Questions 3 and 4.
10. Do you believe that the implementation of the proposal will continue to uphold theNTIA criteria in the future? If yes, please explain why. If not, please explain why andwhat proposal modifications you believe are necessary.
As discussed above, the Proposal does not contain sufficient detail to determine
whether PTI will continue to uphold the NTIA criteria in the future.

Questions Concerning ICG Report and Executive Summary
11. Do you believe the ICG report and executive summary accurately reflect allnecessary aspects of the overall proposal? If not, please explain what modifications
you believe are necessary.
As illustrated above, the Proposal does not contain sufficient detail to reflect allnecessary aspects of the overall proposal.

5General Questions
12. Do you have any general comments for the ICG about the proposal?
INTA respectfully requests that the ICG address the issues raised above before
submitting its final proposal. As such, INTA urges the CWG-Stewardshipto provide another comment period once the following details in the Proposal andadditional details in the CCWG proposal are specified in final form before submission tothe ICANN Board and then NTIA. Further, while the report is clear in explaining theproposals of the three communities, it does not elaborate on how they will be synthesized
where there are discrepancies in approach. It would be helpful for the entire community
to understand how that would work.
About INTA
INTA is a 137 year-old global not for profit association with more than 5,700 member
organizations from over 190 countries. One of INTA’s goals is the promotion andprotection of trademarks as a primary means for consumers to make informed choices
regarding the products and services they purchase. During the last decade, INTA has
also been the leading voice of trademark owners within the Internet community, serving
as a founding member of the Intellectual Property Constituency of the Internet
Corporation for Assigned Names and Numbers (ICANN).
INTA’s Internet Committee is a group of over 200 trademark owners and professionals
from around the world charged with evaluating treaties, laws, regulations and procedures
relating to domain name assignment, use of trademarks on the Internet, and unfair
competition on the Internet, whose mission is to advance the balanced protection oftrademarks on the Internet.

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