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RE: [atlarge-discuss] AtLarge-discuss Summary 16 Sep 2002 - 30 Sep 2002

Dear Giampaolo,
Thank you again for the excellent summary which is very useful. Without
wishing to dwell on the past unnecessarily, please allow me to change one
word of this report that is unintentionally misleading:-

You have attributed to me the raising of one key point: "1) Possible
personal liability of Chair for Trademark infringement".

This misses the most important point entirely, (as did the majority of
readers at the time), which is:

"1) Possible personal liability of *Panelists* for Trademark infringement".

That one word makes all the difference.

I acted to protect not the Chair alone, but the whole Panel. The membership
were to decide the name, not the Panelists. The Panel was not asking the
membership to recommend a name that the Panel may or may not agree to adopt
subsequently, NC style, rather the membership were asked to decide the name.
Period. By implication, they were giving the Panel the mandate to
incorporate in the winning name very quickly thereafter, open bank accounts
in that name, and so on. Once fundraising commences, that's where the real
problems lies.

Aside from my personal liability as a Panelist, as Chair, I did not consider
that I had the right to roll my fellow Panelists into a possible personal
liability situation without their explicit consent in advance, which consent
I did not have, and would be beyond the bounds of duty to expect any
Panelist to take on.

If that was not true, then I could have stopped short of resigning from the
Panel, and just stepped aside as Chair.

While I do not disagree with those that say this trademark issue is a gray
area, gray areas are by far the most expensive to litigate, and can lead to
the Supreme Court, and all the expense that involves.

The Chair's choice was therefore to recommend invalidating the trademark
from available options, or ignoring the possible personal liability issue
for each of the Panelists. It is a matter of record that I recommended the
former, but gained little support, but in reading this record, it is also
important to bear in mind the different personal circumstances that could
have affected individual decisions on this issue - such as location (outside
the relevant jurisdiction), or professional occupation (attorney), or
professional indemnity insurance (representatives of large organizations who
are paid to be here).

Thank you for giving me the opportunity to clarify the record and as stated
previously, I wish the Panel the best of luck and will be following
developments with interest.


> -----Original Message-----
> From: Giampaolo Bonora [mailto:bonora@nettuno.it]
> Sent: Tuesday, October 01, 2002 10:03 AM
> To: atlarge-discuss@lists.fitug.de
> Subject: [atlarge-discuss] AtLarge-discuss Summary 16 Sep 2002 - 30 Sep
> 2002
> atlarge-discuss list
> Archives: http://www.fitug.de/atlarge-discuss/
> Summary, 16 Sep 2002 - 30 Sep 2002
> Nearly 375 messages from 37 senders
> After a memo from Joop Teernstra: "We need 9 more members to reach our
> first 1000", with some replies, Satyajit Gupta on Tuesday Sept. 17
> announced the crossing of 1000 members mark:
> http://www.fitug.de/atlarge-discuss/0209/msg00343.html
> Joanna submitted comments to DNSO NC Transfer Task Force, cc. to the
> list as well as some replies:
> http://www.fitug.de/atlarge-discuss/0209/msg00338.html
> She also forwarded here a message to the panel list, citing an exchange
> from Steve Metalitz and Danny Younger, about the possibility for "a
> regional at-large structure with as few as 200 individual members could
> be accredited to exercise responsibilities ...":
> http://www.fitug.de/atlarge-discuss/0209/msg00350.html
> Judith Oppenheimer started what became this month's main topic
> forwarding an opinion of John Berryhill on the GA list:
> "ICANNatlarge.com is not authorized by or affiliated with ICANN, and its
> use of ICANN trademarks is misleading, deceptive and dilutive.  You
> either have a license or you don't, and it is clear that you don't."
> Joanna took that seriously, immediately communicated that "the Watchdogs
> are discussing the possible impact of this unforeseen development on the
> current vote to choose the organization name". Among others, Vivek Durai
> and Vittorio Bertola expressed the opinion that the vote must go ahead.
> In her reply (that started the list's longest thread ever:
> http://www.fitug.de/atlarge-discuss/0209/msg00381.html)
> she raised these points:
> 1) Possible personal liability of Chair for Trademark infringement
> 2) Invalidation of ICANNAtLarge option from the ballot (which should
> continue with the other four options), opinion shared by all Watchdogs
> 3) Membership information: draft letter to be sent to all voters
> In this thread and in others messages:
> - there were obviously different appreciations of risk, and alternative
> views and actions to manage the problem
> - many voices against modifying the ballot, some interpreted the message
> as a tentative derailment from a decision taken in a democratic process
> - as a discussion's result on 1st. and 2nd. argument, the letter was not
> sent and the icannatlarge option was not removed.
> (Joanna, Bruce Young and Walter Schmidt participated in the discussion).
> On Wed. 25  Judith Oppenheimer resigned from the panel:
> "I had hoped that being a panelist here would afford me the opportunity
> to contribute to the at large effort to the same degree or greater, as
> my advocacy work in other venues: publishing, working groups, task
> forces and the like.
> It appears instead that despite the good intentions of a few good
> panelists and many good members, valuable time here has been
> inefficiently spent at best, and is detracting from other more
> productive work"
> Later on Wed. 25 (previosly fixed as timeline), Walter Schmidt announced
> the result:
> http://www.fitug.de/atlarge-discuss/0209/msg00528.html
> posted in more detail, also on the icannatlarge site:
> http://www.fitug.de/atlarge-discuss/0209/msg00591.html
> http://www.icannatlarge.com/forum/viewtopic.php?t=268
> http://www.icannatlarge.com/voting.htm
> Joanna Lane too resigned from the panel:
>  "I believe use of the term ICANNAtLarge constitutes a Lanham Act
> infringement of US Trademark Law for which people can be held
> personally liable. Not wishing to be personally liable for any
> role in this organization's adopting of the name ICANNAtLarge
> permanently, I am forced to resign as a Panelist and Chair."
> http://www.fitug.de/atlarge-discuss/0209/msg00536.html
> Relations with ICANN, before and after the vote, were commented in many
> messages.
> Norbert Klein remarked that "ICANNatlarge is the only "worldwide"
> organization recognized in the present ICANN process", pointing to the
> site at-large.org, directly or from ICANN website, under "At Large
> Organizing Commitee" - At-Large Structures.
> Michael Sherril pointed to Denise Michel's comments in ICANN Forum, with
> replies:
> http://www.fitug.de/atlarge-discuss/0209/msg00614.html
> Unrelated to result (or at least, without evidence of relation), in some
> messages there is concern for the state of this organization (non
> existent, someone suggested) or otherwise pessimistic views.
> About this list in particular, Joop said:
> "We have started our organization in March and now , end September, we
> have still not accomplished anything permanent via this list.
> We all belong to a community, but that's about all we can say [...]
> When I have any free time, I want to spend it constructively and work on
> procedural rule proposals. I invite those who feel likewise to join
> me  in the Charter section of the Forum":
> http://www.fitug.de/atlarge-discuss/0209/msg00458.html
> Bruce Young put the website transfer and management on top of his list
> of short terms goals, which had many comments:
> http://www.fitug.de/atlarge-discuss/0209/msg00637.html
> According to the Election Charter, Bruce Young and Edmundo Valenti being
> 1st. and 2nd. after the elected panelist, they were asked to replace the
> two resigning members.
> Hans Klein, acting as Alternate Chair, communicated their acceptance and
> sent an update on panel activities:
> http://www.fitug.de/atlarge-discuss/0209/msg00665.html
> http://www.fitug.de/atlarge-discuss/0209/msg00672.html
> --
> The amount of suggestions, insights, detailed contributions is growing.
> I plan to try another short summary around mid-October.
> ------------------------------------
> Giampaolo Bonora - bonora@nettuno.it
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