September 2016 - GNSO-RPM-WG

Re: [gnso-rpm-wg] "free speech"
by J. Scott Evans Oct. 1, 2016

Oct. 1, 2016

Rebecca: Thanks for weighing in here. First, I do not use Wikipedia as a definitive source for anything related to the law. It is interesting reading and may require that I go to more definitive sources to verify, but I do not put much stock in it as the absolute "truth" on any subject. Second, many countries have almost an exact replica of the US Constitution, but don't recognize the provision related to free speech. Likewise, many jurisdictions do not recognize the concept of "fair use." My only point our call was that there are many non-lawyers participating. I think many time views are put forth on our calls that could be seen as misleading. It is one thing to hold the US concept of free speech up as the standard bearer that we should aspire to in our work (I could also argue that US concept of IP protection should also be held up as an appropriate standard). However, in my experiences at ICANN since we originally drafted, it has constantly been pointed out that we SHOULD NOT apply US-like trademark protections to the ICANN RPMs since different jurisdictions view trademarks differently. I can theoretically see the rationale behind this argument. Unfortunately for me, however, I fail to see how the concept of US free speech should be universally applied, but US-like trademark protections should not. I think that is intellectually inconsistent. As for the UN's Universal Declaration of Human Rights and its signatories, I think the same position could be taken with regard to the Paris Convention and its signatories. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans(a)adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Wednesday, September 28, 2016 at 10:34 AM Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] "free speech" Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759 ________________________________ <ACL>

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Action items from the WG call of 28 September 2016
by Mary Wong Sept. 30, 2016

Sept. 30, 2016

Dear all, The Trademark Claims slide presentation has been updated with the additional questions and suggestions that were made by WG members who were on the call this Wednesday. You can find the updated slide deck – with the additional questions listed on a new Slide #16 – on the WG wiki at: https://community.icann.org/x/QAu4Aw (under the heading Follow Up). In addition, WG members also suggested that registrars be requested to provide data on the total number of registration attempts that were made through them – the objective being to discover how many such attempts did not trigger a Claims Notice (since we have data for the number of Claims Notices triggered, the percentage of registrations that then proceeded toward completion of registration, and the total number of actual registrations, but no information on how many attempted registrations were not subject to a Claims Notice). Staff will note this suggestion for inclusion in the WG’s (or the Sub Team’s, as appropriate) outreach efforts to registrars. WG members are kindly requested to review the full list of Charter questions pertaining to the TMCH, Sunrise and Claims – including the additional community and WG suggestions received – as part of the overall WG exercise to determine whether to consider only some or all of them, and whether other questions need to be added. As noted previously, staff has compiled and circulated the full list of questions into a single document for ease of review, and the document is also available at the wiki page link noted above. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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"free speech"
by Rebecca Tushnet Sept. 30, 2016

Sept. 30, 2016

Just to correct a misstatement on the call earlier: Most nations don't have a US-style First Amendment. Most nations with a rule of law do, however, recognize freedom of speech in some form, including the right to criticize private companies. As this Wikipedia entry notes, https://en.wikipedia.org/wiki/Freedom_of_speech_by_country, implementation can be inconsistent on the ground, but I expect that inconsistent enforcement of trademark rights on the ground doesn't mean that trademark owners want ICANN to ignore the law on the books; freedom of speech is equally a principle worth honoring. In addition, I don't know how many countries whose nationals participate in the ICANN process have signed on to the Universal Declaration of Human Rights, which includes freedom of speech, http://www.un.org/en/universal-declaration-human-rights/, but I doubt we want to make policy based on the countries that don't recognize any freedom of speech at all. Also, you can't have it both ways: if domain names can facilitate infringement, which they absolutely can, then they convey meaning; if they convey meaning, they can also facilitate noninfringing conduct or affirmatively protected freedom of speech. It is just as true, or untrue, that a trademark owner can register a different string if it can't have the one that it wants as it is that a person making fair or otherwise noninfringing use can do so. This is especially so if we've given trademark owners the ability to jump the line in many circumstances. Freedom of speech principles may help tell us when preclusion of a domain name to a speaker-whether a trademark owner or a non-owner-is of particular importance. That is, they can help us identify the important false positives (notifications generated in response to domain names that wouldn't infringe). Rebecca Tushnet Georgetown Law 703 593 6759

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Mp3, Attendance & AC Chat Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group 28 September 2016
by Terri Agnew Sept. 28, 2016

Sept. 28, 2016

Dear All, Please find the attendance of the call attached to this email and the MP3 recording below for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group call held on Wednesday, 28 September 2016 at 16:00 UTC. Attendance of the call is posted on agenda wiki page: https://community.icann.org/x/QAu4Aw MP3: http://audio.icann.org/gnso/gnso-rpm-review-28sep16-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Wiki page: https://community.icann.org/x/rhiOAw Thank you. Kind regards, Terri Agnew ------------------------------- Adobe Connect chat transcript for 28 September 2016: Terri Agnew: Welcome to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group held on Wednesday, 28 September 2016 at 16:00 UTC for 60 minutes. Terri Agnew: agenda wiki page: https://community.icann.org/x/QAu4Aw George Kirikos: Hi folks. George Kirikos: It looks like the layout of the room was adjusted slightly? David Tait: Hi George, yes there have been some updates to add additional functionality to the AC rooms Steve Levy: Hi all! Paul Tattersfield: Hi everyone Greg Shatan: Nice new room! I can still smell the paint. Yuri Chumak: hi Ankur Raheja: Hello Kathy Kleiman: But do you like the color, Greg? Greg Shatan: So many shades of gray. Maxim Alzoba (FAITID): Hello all Kathy Kleiman: oh dear. Greg Shatan: We will need to provide color with our chat colors. And with our comments. Georges Nahitchevansky: Who was in charge of the paint job Kathy Kleiman: indeed, color commentary... George Kirikos: A theme selector would be nice....perhaps aqua..... Greg Shatan: I want to rock and roll all night, and ICANN every day. Greg Shatan: Custom skins for Adobe Connect rooms! Mary Wong: Ack, earworm!!! Greg Shatan: @Mary, sorry...:-) Mary Wong: :) ----------------------------------------------------- (09/28/2016 11:07) ----------------------------------------------------- Terri Agnew: everyone can turn the slides themselves ----------------------------------------------------- (09/28/2016 11:09) ----------------------------------------------------- Terri Agnew: Please remember to mute when not speaking Jeff Neuman (Com Laude): yep. Paul Keating: Hello all. Sorry I am late. ----------------------------------------------------- (09/28/2016 11:11) ----------------------------------------------------- Paul McGrady: Sorry to be tardy. Good m/a/e. ----------------------------------------------------- (09/28/2016 11:12) ----------------------------------------------------- George Kirikos: Is there a reason for the English bias in the notice? (Given the large number of registrants from China, are they getting adequate notice? Are the Chinese registrars translating into Chinese?) Griffin Barnett: I believe it is required (not optional) to provide the notice in English and the language of the registration agreement Maxim Alzoba (FAITID): How to say .... lot's of potential registrants were freaked out due to the text and did not realise that they are not doing wrong things ... it would be nice to have more non-legal persons friendly text Mary Wong: The TMCH Requirements provide the following: "The Claims Notice MUST be provided by the registrar to the potential domain name registrant in English and SHOULD be provided by the registrar to the potential domain name registrant in the language of the registration agreement." George Kirikos: Do we have any stats on whether the registrars are following the "should" advice? Or are they cutting costs, and ignoring the suggestion? Mary Wong: So whether there is a Chinese version depends on whether the registration agrement is in Chinese (which may well be the case if the registrar is a Chinese-based registrar). Philip Corwin: Slide 4 notes that Notice must be provided in English and, preferably, language of registration agreement ----------------------------------------------------- (09/28/2016 11:16) ----------------------------------------------------- George Kirikos: 46.8% of registrants are from China for new gTLDs, so perhaps the "should" can be replaced by "must" https://ntldstats.com/country Jeff Neuman (Com Laude): One interesting note was that the original policy was that a Registry had to run a Sunrise OR a Claims Period, but not both. Jeff Neuman (Com Laude): THat changed after GAC Advice George Kirikos: (might even be higher than 46.8%, depending on the 17.9% of proxy registrations) Jeff Neuman (Com Laude): We need to decide whether to formally codify both into the policy (or not) Mary Wong: @George, we (staff) don't know at this point if the aggregate numbers for Claims Notices sent are available broken down into different languages. Note that the official working language at ICANN is English, so the official notice (as provided for in the TMCH Requirements) is provided in English. I don't believe we provide an official translation in multiple languages. ----------------------------------------------------- (09/28/2016 11:19) ----------------------------------------------------- George Kirikos: That's surprising that there's no official translation, given that one of the justifications for the new gTLDs program was for IDNS, and "lesser served" countries in general. Maxim Alzoba (FAITID): than, given that most people on the planet do not read English ... I think big share of those notices were not understood Jeff Neuman (Com Laude): @George, perhaps that's a policy recommendation; (Namely, we should have formal translations done in at least the 6 UN languages)/ George Kirikos: +1 Jeff Mary Wong: All, for Slide 10, the "either type of registration activity" quoted refers to both legitimate registrations and cybersquatting activity. Maxim Alzoba (FAITID): +1 for chilling effect ----------------------------------------------------- (09/28/2016 11:22) ----------------------------------------------------- Griffin Barnett: agree that official translations of the claims notice language in at least the 6 UN languages would be helpful George Kirikos: How many registration attempts didn't trigger a claims notice? (i.e. is XX million+ total registration attempts, but 1.8 million triggered a Claims Notice?) Jeff Neuman (Com Laude): And today Donuts announced a new DPML Plus service George Kirikos: (and of those that didn't trigger a claims notice, what % (presumably higher than 6.3%) went on to complete the domain name registration?) Mary Wong: @George, I think we can only get that total number if all registrars agree to provide that information. Jeff Neuman (Com Laude): http://www.donuts.domains/services/dpml-plus/dpml-plus-overview George Kirikos: @Mary: We'd need those kinds of figures, to determine whether or not the 6.3% is indeed a "chilling effect" ----------------------------------------------------- (09/28/2016 11:26) ----------------------------------------------------- Philip Corwin: I'm confused about Donuts' DPML service. Slide says that mark registered in TMCH can be blocked, but also says that blocked mark need not be an exact match of the TMCH registered mark. How broad is the potential scope of blocking? Maxim Alzoba (FAITID): this kind of extra protection will prevent those parties from obtaining their matching domains, the way we see now with IGOs ... Mary Wong: @George, we don't disagree - but I doubt we can get all the data so as to be a reliable figure. Perhaps we can compare the number of Claims Notices issued and the number that proceeded nevertheless (per the Analysis Group's data) with the total number of registrations? Jeff Neuman (Com Laude): Can we add the question of whether both Sunrise AND Claims should continue to apply or whether we stick with the original policy which was Sunrise OR Claims Philip Corwin: My recollection is that TM+50 not being used much Paul Tattersfield: It's probably a helpful chill, developing a (non-infringing) business on a domain where there is also a larger brand in an unrelated sector is a serious headache and it doesn't go away with tine. If possible choosing a unique name is a far better route. Paul Tattersfield: time Mary Wong: @Phil, on the breadth of a DPML block, the operative word used by these registries is "contains" the TM. I believe they also include substituions (e.g. numbers for characters). Maxim Alzoba (FAITID): given the amount of generic names registered as TMs- extra protection will make future TLDs usless Kathy Kleiman: Looking at the Additional Questions and Issues from the Charter, perhaps the key question is: are the TM Claims Services policies fair and balanced as adopted and as used? ----------------------------------------------------- (09/28/2016 11:30) ----------------------------------------------------- Steve Levy: I feel balance is an important consideration given the huge number of cybersquatted domains compared with the lower number of generic domains claimaed curing sunrise by trademark owners George Kirikos: Do we have any stats on what percentage of the claims notices get triggered in different time periods? (e.g. first 10 days of GA, vs. 80th-90th days of GA) Perhaps that would help determine where the "sweet spot" is, in terms of picking an optimal time period for the claims notice period. Paul Keating: Perhaps organizing them by category. TMCH procedureal issues, Rights protections, etc. Rebecca Tushnet: It seems to me a problem with data collection is that registries aren't required to let ICANN inspect--subject to confidentiality agreements--the actual attempts that triggered matches/notices. Without being able to audit a sample there is just no way to make any kind of informed judgment about whether these are true positives or false positives, or what percentage of each we might be getting. Statton Hammock: I don't think the first and last are NOT the same. One asks for an opinion, the other asks for facts. Mary Wong: @Rebecca, that is the staff concern - that any data we get from registrars will likely be incomplete and thus not as accurate or helpful as we may need. Rebecca Tushnet: So can contracts with registries be changed to allow such audits in the future, again subject to confidentiality obligations? Jeff Neuman (Com Laude): Rebecca - I think you meant registrars in your point. Registries do not have the information you point out (Namely, whether registrations were attempted but decided not to proceed) . That is the registrar level Rebecca Tushnet: And by allow I mean "require access to" John McElwaine: @jscott Agree with that approach Rebecca Tushnet: Sorry, registrars Petter Rindforth: agree khouloud Dawahi: yes Kathy Kleiman: @J.Scott: What slide are you looking at now? Tx. Philip Corwin: @Steve Levy--what is factual basis for statement that there is "huge number of cybersquatted domains"? UDRPs constitute less than 1/100 of all registered gTLD domains. Maxim Alzoba (FAITID): Even adding "if you do not understand the text = please click this URL in 6 UN languages will help" Beth Allegretti: + 1 Caroline Bret Fausett, Uniregistry: I like the suggestion of changing the text of the notice. Jeff Neuman (Com Laude): Yes, I will go after Jeff Neuman (Com Laude): because my question is semi different topic George Kirikos: Here's what the TM Claims Notice looks, for one registrar (Tucows/OpenSRS): https://kb.opensrs.com/22964-domains/188131-trademark-claims-notifications Vaibhav Aggarwal: HI I am In Sorry for being late kept waiting on the older link only to realise that the Talk is in a new Room :-) Kristine Dorrain - Amazon Registry: Thanks. all. I have to bail. Will listen to the rest this afternoon. George Kirikos: (scroll down a couple of pages, to see what the registrant sees) ----------------------------------------------------- (09/28/2016 11:37) ----------------------------------------------------- Kathy Kleiman: @Mary and David: Could you add Jeff's question to the right? ----------------------------------------------------- (09/28/2016 11:39) ----------------------------------------------------- Mary Wong: Done! ----------------------------------------------------- (09/28/2016 11:41) ----------------------------------------------------- Ivett Paulovics: Sorry for being late Ivett Paulovics: Hi everyone Jeff Neuman (Com Laude): We need to decide also from a policy perspective as to whether to codify tM plus 0 Jeff Neuman (Com Laude): 50 George Kirikos: Interestingly, for Tucows/OpenSRS "You cannot enable Contact Privacy for domains that match marks in the Clearinghouse." I wonder if other registrars do the same, to mitigate risk. Jeff Neuman (Com Laude): that was not a GNSO policy Jeff Neuman (Com Laude): That was a Board addition after consultation ----------------------------------------------------- (09/28/2016 11:44) ----------------------------------------------------- Greg Shatan: A more "conversational" notice could make sense. Would "Abandon Hope, All Ye Who Enter Here" be too harsh for a claims notice? It translates nicely into Italian. ----------------------------------------------------- (09/28/2016 11:45) ----------------------------------------------------- George Kirikos: Thanks for pointing out that list, Kathy. Kathy Kleiman: @Greg, Dante's words may not be welcoming to registrants :-) Mary Wong: @Paul M, that language was in the TMCH Requirements. We haven't (David and I) seen an actual Claims Notice but we can ask. J. Scott Evans: @Greg ah hahahahahahaha Kathy Kleiman: How do we encourage fair use and discourage infringing use? ----------------------------------------------------- (09/28/2016 11:48) ----------------------------------------------------- Kathy Kleiman: blame us! George Kirikos: Perhaps the Claims Notice should only be triggered if the prospective registrant is in the same country as the mark. e.g. US Mark would show to a US Registrant, but not to a Canadian registrant. Pakistani mark wouldn't show to a US registrant. Kathy Kleiman: we did try to create a balanced notice... Greg Shatan: Agree with Paul, the notice does need to be firmly stated enough to put the potential registrant on notice. Kathy Kleiman: +1 Paul! Greg Shatan: The balance may be right -- it may be the legalistic language that needs fixing. Lori Schulman: Kathy just explained the problem in a nutshell. How do we balance the message? Kathy Kleiman: for those reading the chat room later - the 10 most frequently downloaded trademark strings in claims service data - smart, forex, hotel, one, love, cloud, nyc, london, abc, luxury Philip Corwin: @Paul--I wasn't advocating any particular "softening" language at this time, just some thinking about whether language can be made a tad less legalistic and thereby clearer for average registrant. Agree that some intended registration may be very infringing, while others would not -- often dependent on registrant intent raher than the TMCH-registered mark. Jeff Neuman (Com Laude): I also believe that a number of notices may be been sent as part of an error from a particular registrar Steve Levy: Sorry, have to log off now but will continue on the phone line. Phil Marano (Mayer Brown): Should we explore the possibility / likelihood that potential registrants who ultimately decline to register domain names upon receipt of a claims notification, are simply seeking to reverse engineer the Clearinghouse database through a multitude of queries and attempted registrations? Mary Wong: @Phil M, how would we do that, though? Greg Shatan: Phil, that's an interesting point. And could skew the data. Phil Marano (Mayer Brown): @Mary: Not sure, open to any thoughts of course. George Kirikos: I wonder if the 93.7% figure might be overstated, if some of the domain names that triggered Claims Notices were also Premium Domains? George Kirikos: e.g. "smart" or "hotel" might be $50,000/yr domains. Kathy Kleiman: @Mary and David: could you include Beth's question re: language and translation? Jeff Neuman (Com Laude): I do believe it is overstated Mary Wong: The Technical Requirements say "SHOULD" (for language of registration agreement) Maxim Alzoba (FAITID): the only language of Registry Agreement is English John McElwaine: @Phil I was about to mention that . We cannot assume that every purported "registrant" is actually trying to register a domain name. Greg Shatan: Can we find out what the more popular local registrars are doing, in fact? There can't be that many. George Kirikos: Plus, if 10 people were deterred from registering Hotel.TLD, it doesn't mean the string doesn't get registered --- the 11th person might (smartly) recognize the term can be used for non-infringing sites, and she/he goes ahead with the registration. Greg Shatan: It's the end-user registration agreement, not the Registry Agreement. I assume if I'm sitting in China and uising a Chinese registrar, the registration agreement is highly likely to be in Chinese. ----------------------------------------------------- (09/28/2016 11:55) ----------------------------------------------------- George Kirikos: Perhaps "human rights" refers to Free Speech? Statton Hammock: Agree J. Scott Mary Wong: We will add this - but, again, that depends on registrars agreeing to provide that information, and we may not also get all to respond. Jeff Neuman (Com Laude): Every PDP is now being asked about Human Rights Mary Wong: (this = questions/data about language of registration agreements) Greg Shatan: There's the CCWG-Accountability WS2 Subgroup on Human Rights Jeff Neuman (Com Laude): Seems to be a popular addition Jeff Neuman (Com Laude): And those that added the Human Rights language are never in these groups :) Jeff Neuman (Com Laude): Stephanie Perrin I believe on the Council always wanted to add this language George Kirikos: I'm in favour of Article 24: http://www.un.org/en/universal-declaration-human-rights/ (right to rest and leisure) :-) Greg Shatan: I'm in there too, We are in the "messy" stage of the multistakeholder process. This too shall pass (it almost always does.) Jeff Neuman (Com Laude): I have to drop.....Bye all Mary Wong: "1. Are recent and strong ICANN work seeking to understand and incorporate Human Rights into the policy considerations of ICANN relevant to the UDRP or any of the RPMs?" Paul McGrady: @George K: love it! "Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." Paul Tattersfield: breach of natural justice is important Paul McGrady: I am very concerned about just cherry picking one human right to apply here. Paul McGrady: This is a morass we should not allow ourselves to get trapped in. This is the work of that WS2 Subgroup. Paul Keating: J Sc ott: The EU certainly DOES have fair use. It is in 4Ibis of the EC Regulation on Trademarks Paul McGrady: Article 27(2) "(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." Mary Wong: @Greg, as noted, these were community suggestions made to ICANN, unedited by staff. Bret Fausett, Uniregistry: I would invite people who are knowledgable of, sensitive to, and passionate about "human rights in the DNS" look at the work of the working group, and every working group, and tell us if what the group is doing impacts the issues. I am open to this issue, but I don't know enough about it to have an opinion one way or another. Vaibhav Aggarwal: Where are v going with this on TMCH ? Paul Tattersfield: Its relevant for refiling UDRPs Vaibhav Aggarwal: This is the not the Statge Vaibhav Aggarwal: Guys Vaibhav Aggarwal: I am confused Vaibhav Aggarwal: This is TMCH - Just a Repository Vaibhav Aggarwal: an Agency Vaibhav Aggarwal: Takes Iformation form one Source and Sends it to other Vaibhav Aggarwal: thats it Greg Shatan: Umbrella with broken spokes and bum handle... Mary Wong: Note that all these questions are community-made. The Charter states that "The issues that are listed here reflect the suggestions that have been made to date by the community regarding improvements or modifications to the RPM(s) in question and should form part of the discussions of the PDP Working Group. The Working Group may decide to address all, some or even additional issues to these." Paul Keating: do NOT strike. It should be kept but agree dealt with last. Vaibhav Aggarwal: @Greg ha ha ha Bret Fausett, Uniregistry: I wouldn't strike it, J. Scott. Let's just defer this. Bret Fausett, Uniregistry: Maybe just a change of terminology. Paul Keating: If it is an umbrella question it impacts all of the various points. Greg Shatan: Maybe by then the WS2 subgroup on HR will be finished with its work. Paul McGrady: WS2 HR is supposed to be done well ahead of us. Kathy Kleiman: +1 Paul Terri Agnew: The call for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group is scheduled for Wednesday, 05 October 2016 at 17:00 UTC for 60 minutes. Kathy Kleiman: Each umbrella question should be evaluated with each RPM - as appropriate Greg Shatan: And don't foreget to update your Adobe Connect link. George Kirikos: Bye folks. Maxim Alzoba (FAITID): bye all Kathy Kleiman: Tx J. Scott and All Greg Shatan: Bye all. Georges Nahitchevansky: Bye everyone Elizabeth Featherman: bye all! Vaibhav Aggarwal: Thanks Team Vaibhav Aggarwal: ciao Paul Tattersfield: bye everyone Philip Corwin: Ciao

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Agenda for WG meeting of 28 September 2016
by Mary Wong Sept. 28, 2016

Sept. 28, 2016

Dear WG members, The proposed agenda for the next WG meeting, scheduled for 28 September at 1600 UTC, is as follows: 1. Roll call (via Adobe Connect and phone bridge only); updates to SOIs 2. Overview presentation of the Trademark Claims Service 3. Discussion of Charter questions relating to the Trademark Claims Service 4. [if time permits Continuation of discussions over the TMCH and Sunrise (based on the last two WG calls and subsequent mailing list discussion) 5. Next steps/next meeting To assist with the WG’s review of all the Charter questions relating to TMCH and Sunrise (see agenda item #4), please find attached a document containing all the Charter questions this WG has been tasked to look at, together with additional questions that have since been suggested by either WG members or by other members of the community at ICANN56 in Helsinki. In relation to the TMCH and Sunrise, all the questions had already been listed in the respective slide decks for both those presentations. The document separates out all the questions into categories corresponding to each RPM in Phase One, and also includes a General section. Please note also that the Charter questions merely replicate all the previous questions the community had raised with ICANN on the issue of RPM protection, and these have not been edited or otherwise reviewed by either the staff’s or the co-chairs. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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Further information on registry and registrar requirements and obligations (Re: TMCH review objectives)
by Mary Wong Sept. 27, 2016

Sept. 27, 2016

Dear all, Further to Paul’s request (below) and my earlier note, staff hopes that the following additional information is also helpful. Under Specification 7 of the base New gTLD Registry Agreement, all New gTLD registry operators are obliged to implement the TMCH Requirements referenced previously. These Requirements incorporate the two provisions I mentioned in my note, and set out further criteria, processes and other terms relating to the provision of Sunrise and Claims Services. A copy of the base New gTLD Registry Agreement (as of January 2014) can be found here: http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved…; and individually-executed Registry Agreements are listed here: https://www.icann.org/resources/pages/registries/registries-agreements-en. In addition, all New gTLD registry operators and registrars wishing to sell domains under the 2012 New gTLD Program are required to agree to the Terms of Service for Registries and Registrars prior to offering any Sunrise or Claims Services: https://marksdb.org/tmdb/public/tandc (note that these registries and registrars also have to complete testing with, and be certified by, IBM in order to use the TMCH). In relation to the discussion about registrar (rather than registry) obligations, the TMCH Requirements state the nature and limit of registrar obligations in relation to the provision of Claims Notices to potential registrants (e.g. they must be clear and conspicuous, be in the prescribed form, and provided in English and preferably also the language of the registration agreement). The TMCH Requirements also provide that registrars may query the Claims Notice Information Service only in relation to domain names actually applied for by a potential registrant, and not for any other purpose. Finally, under the Terms of Service for Registries and Registrars referenced above, WG members may be interested to review the following provision (quoted here in relevant part only): “You agree that you will not use the Trademark Clearinghouse or the Services in a manner (as determined by us in our sole discretion) that: 7.1.1 Is illegal, or promotes or encourages illegal activity; 7.1.2 Infringes on the intellectual property rights of any other person or entity; 7.1.3 Interferes with the operation of the Trademark Clearinghouse or the Services; 7.1.4 Modifies or alters any part of the Clearinghouse Content or the Services; 7.1.5 Results in the distribution of Clearinghouse Content in a manner not authorized or contemplated by the Functional Specifications or TMCH Requirements …. “ We realize that these are fairly voluminous additional documents for which we are providing the links here and in my last message; however, we hope that in combination they provide a useful summary of the various obligations of and restrictions on both registries and registrars in relation to the provision of Sunrise and Claims Services under the 2012 New gTLD Program. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889 From: Paul Keating <paul(a)law.es> Date: Tuesday, September 27, 2016 at 08:40 To: Greg Shatan <gregshatanipc(a)gmail.com>, Mary Wong <mary.wong(a)icann.org> Cc: "J. Scott Evans" <jsevans(a)adobe.com>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Greg, A few comments: 1. Publicly Available Data. I did not say that the TMCH database was publicly available. However, the TMCH database is nothing but a collection of public trademark registrations and evidence of actual use. As such, the original trademark registrations are publicly available. Thus, the registries could simply use other public sources and be able to price “trademark-related” domain names as they wish. 2. Restrictions on use. Your reference to limited purpose use does not appear in Mary’s underlying email. To obtain any use restrictions we would have to review any relevant agreements between TMCH and the registries (or ICANN if TMCH has an agreement with ICANN which is somehow incorporated within the Registry agreement). In the absence of any restrictions in the agreement, I see no basis for a subjective description indicating that use is somehow improper. The same goes for any access provided to registrars. @Mary, can you supply such agreements? 3. Legal Restrictions. Antitrust laws would not seem to apply unless the affected “market” were limited to a specific extension. I cannot recall how that issue was addressed in the litigation against Verisign/ICANN over pricing but reference to that case might give further information. Even if antitrust (or other) laws applied such would be factually specific and best addressed via a post occurrence curative rights process such as the UDRP/URS (in the case of cybersquatting) or litigation (in the case the claim was based upon the pricing in the absence of subsequent cybersquatting). @Phil do you remember how the court addressed the market in that case? 4. RPM – I think you are mixing things up a bit. The SunRise was a RPM (allowing trademark holders to pre-emotively register domain names based solely upon a trademark registration and evidence of use). It did not extend to protect non-trademark holders in situations where in the asserted mark was in fact descriptive/generic and thus available for non-cybersquatting use. TMCH was NOT a RPM. It was a means to make the Sunrise process more efficient (by creating a uniform process) and less costly for the trademark holders (by permitting them to merely reference their TNCH record instead of producing evidence each time). The additional RPM you are not considering are the curative rights processes found in the UDRP and URS which protect the trademark holder IF (a) they did not register during Sunrise AND (b) the domain was later registered illegitimately and registered and used in bad faith. As far as I can see none of these policy tools were intended to address pricing – an issue intentionally left to the market. 5. Future use prohibitions. I may be mistaken but I believe that TMCH already has an agreement with ICANN and/or the Registries. If so, any proposal you are suggesting would require a specific amendment (requiring consent of all parties). And, of course, such a restriction would do little good given that the same exact data can be collected from any number of publicly available sources. I remain unconvinced there is an actual issue here (my view being that pricing includes a value that cannot be said to be entirely unreasonable). And, I am not at all convinced that this is an appropriate area for the WG given our charter. Sincerely, Paul Raynor Keating, Esq. Law.es[law.es]<https://urldefense.proofpoint.com/v2/url?u=http-3A__law.es_&d=DQMFAw&c=FmY1…> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> Date: Tuesday, September 27, 2016 at 5:18 PM To: Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Cc: Paul Keating <paul(a)law.es<mailto:paul@law.es>>, "J. Scott Evans" <jsevans(a)adobe.com<mailto:jsevans@adobe.com>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives I take from this the following: * The TMCH database is NOT publicly available, in spite of claims to the contrary. A policy decision was made NOT to make the TMCH database publicly available, to avoid gaming and targeting of trademark owners. If it is "publicly available" through some channels, these are not authorized sources. It's reasonable to assume that these are either leaked or reverse engineered. I'm not sure what the "evil source" is -- there may be multiple evil sources. * The DNL List, containing only the DNL field of the the TMCH database, is made available to New gTLD Registries, who are required to have it and update it daily. * The sole purpose the DNL List is given to Registries is so they can check whether a requested domain name matches a domain name label of a pre-registered mark during the Trademark Claims Period. Any other use would be an unauthorized use. * Neither the TMCH database or the DNL List is made available to Registrars. If a Registrar has either one of these, it has come from a source not authorized to share it (either a Registry which received it legally, or a third party who reverse engineered it) or the Registrar reverse engineered it. In either case, a Registrar is not authorized to either to have or to use the TMCH database or the DNL List. * A Registry using the DNL list in order to set differentiated wholesale prices for particular domains and target particular trademark owners during the Sunrise Period (or for that matter during GA or any other period) is making an unauthorized and unintended use of the DNL list. J Scott has called this a "bad faith" use and I am inclined to agree, especially since it begins with "unclean hands." (Note: this is a different issue from a Registry setting a single high price for all trademark owners during Sunrise (or GA, etc.) This is also a problematic practice but not the one being discussed.) * Registrars probably don't need the DNL List, since they can key retail prices off the wholesale prices (and each Registrar is free to decide their markup over the wholesale price) and can use "premium" lists set by the registries. However, if a Registrar has the DNL list (which they shouldn't) and uses it to set further differentiated prices for particular domains, that would be an unauthorized use of the DNL list. That would also be a "bad faith" use of the data, especially since the Registrar isn't even supposed to have the data. These practices may violate both the law and ICANN policy. On the legal front, these may be violations of antitrust/competition laws, either under a price discrimination theory or under a wrongful exercise of monopoly power theory. Anti-price-gouging laws could also be implicated here. I have not conducted an analysis of these points, but it would be good to do so. (Similar issues may arise with across-the-board exorbitant prices in Sunrise Periods.) The possession and use of the DNL List for anything other than its intended purpose by its intended recipient could also violate data protection laws, and could be violations of the terms under which the DNL List is distributed. On the policy front, these activities could be violations of the ICANN policies relating to the creation and purpose of the TMCH database and the Sunrise Periods. These could be more granular violations of particular policy points and/or a violation of the entire purpose of these policies. On the latter point, these polices are Rights Protection Mechanisms. They were set up to protect the rights of trademark holders. They were certainly not set up to use those rights to victimize trademark owners, by singling them out and targeting them with exorbitant pricing schemes. These pricing schemes (whether differentiated or across-the-board) make a mockery of these rights protection mechanisms. Instead, they become "rights detection mechanisms," allowing those unfortunately detected to be charged extra-high prices solely based on their identity. On a going-forward basis, we should make absolutely certain that (1) any use of the DNL List (or the TMCH database) by a Registry for any other purpose than sending Claims Notices is strictly prohibited and a violation of applicable terms and contracts; (2) any use or possession of the DNL List (or the TMCH database) by anyone other than a Registry is strictly prohibited and a violation of applicable terms and contracts (if these parties are subject to terms and/or contracts with ICANN). Greg On Tue, Sep 27, 2016 at 1:12 AM, Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, in response to Paul’s request, here is some information that we hope is helpful. First, the TMCH Technical Requirements and Functional Specifications have certain criteria and requirements for Registries in terms of the data they can fetch from the TMCH (the Technical Requirements can be found at https://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirement…<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_…> and the Functional Specifications at http://tools.ietf.org/html/draft-lozano-tmch-func-spec)[tools.ietf.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__tools.ietf.org_html_dra…>. For example: · REQUIREMENT - Registries must refresh the latest version of the SMD Revocation List at least once every 24 hours. NOTES: - The SMD (Signed Mark Data) Revocation List is the list of SMDs that have been revoked, maintained by the TMCH database. It contains all the revoked SMDs present in the TMCH database at the date and time it is generated. The SMD Revocation List is used during the Sunrise Period to validate SMDs received. During the Sunrise Period the Registry fetches the most recent SMD Revocation List from the TMCH database at regular intervals. - As noted during the Sunrise Overview WG discussion a couple of weeks ago, after a successful registration of a mark, the TMCH validator returns an SMD File to the TM holder. A SMD is a cryptographically signed token issued by the TMCH validator to the TM holder, to be used in the Sunrise Period to apply for a domain name matching a domain name label of a mark that has been pre-registered with the TMCH. · REQUIREMENT - Registries must download and refresh the latest version of the DNL List at least once every 24 hours. NOTES: - The DNL List contains every Domain Name Label (DNL) that matches a pre-registered mark present in the TMCH database at the date and time it is generated. The list is maintained by the TMCH database. Registries use the DNL List during the Trademark Claims Period to check whether a requested domain name matches a domain name label of a pre-registered mark. Secondly, the TMCH provides public monthly reports on TMCH trademark validation and dispute resolution activity, which are posted by ICANN here: https://newgtlds.icann.org/en/about/trademark-clearinghouse/registries-regi…<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_…>. Thirdly, the TMCH publishes regularly on its own website statistics about TMCH records, including number of marks submitted and number of Claims Notices issued; for example: http://www.trademark-clearinghouse.com/content/tmch-stats-april-20th[tradem…<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.trademark-2Dclearin…>. Finally, ICANN maintains a page containing the dates of all the Sunrise, Claims and related pre-launch RPMs offered by each New gTLD registry operator: https://newgtlds.icann.org/en/program-status/sunrise-claims-periods[newgtld…<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_…>. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org<mailto:mary.wong@icann.org> Telephone: +1-603-5744889<tel:%2B1-603-5744889> From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of "Paul(a)law.es<mailto:Paul@law.es> ZIMBRA" <paul(a)law.es<mailto:paul@law.es>> Date: Monday, September 26, 2016 at 16:39 To: "J. Scott Evans" <jsevans(a)adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives I apologize for the name error. As for use of data, I believe the same data is publicly available from any number of non-TMCH data. In that regard can staff please publish the data points that TMCH does publish to registries? Paul Keating On 26 Sep 2016, at 11:54 PM, J. Scott Evans <jsevans(a)adobe.com<mailto:jsevans@adobe.com>> wrote: Paul: First, we can agree to disagree. Also, my name is “J. Scott” (kind of my trademark) :-). Second, I am not talking about regulating a price. However, I do think pricing is relevant if the “data” is being used for a purpose (targeting trademarks for increased pricing) for which it was not intended and that is against the interest of the parties who the TMCH was designed to assist in handling the explosion of new gTLDs. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336<tel:408.536.5336> (tel), 408.709.6162<tel:408.709.6162> (cell) jsevans(a)adobe.com<mailto:jsevans@adobe.com> www.adobe.c[adobe.c]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.adobe.c&d=DQMFaQ&c=…>om From: "Paul(a)law.es<mailto:Paul@law.es> ZIMBRA" <paul(a)law.es<mailto:paul@law.es>> Date: Monday, September 26, 2016 at 1:22 PM To: "J. Scott Evans" <jsevans(a)adobe.com<mailto:jsevans@adobe.com>> Cc: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver(a)timewarner.com<mailto:Bradley.Silver@timewarner.com>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives Scott, I strongly disagree. First I don't think it is bad faith and certainly not per se so as to warrant a global pricing restriction. The fact that there are potential buyers who may value a domain at a higher price is nothing but applying traditional market principles applied in virtually every other form of business. Domains are not utilities to be regulated in such manner. Nor do I see any basis to guaranty pricing for the benefit of trademark holders. Second, given that the same "TMCH data" is publicly available I don't understand the basis for focusing on TMCH as the evil source. Paul Keating On 26 Sep 2016, at 9:26 PM, J. Scott Evans <jsevans(a)adobe.com<mailto:jsevans@adobe.com>> wrote: Paul: Respectfully, I think you are missing some of the point here. I agree the market should operate as a free market. However, using the data in the TMCH to create lists of “premium” domains in the hope of having trademark owners pay exorbitant prices to acquire their marks is a bad faith practice that should be halted. J Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336<tel:408.536.5336> (tel), 408.709.6162<tel:408.709.6162> (cell) jsevans(a)adobe.com<mailto:jsevans@adobe.com> www.adobe.c[adobe.c]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.adobe.c&d=DQMFaQ&c=…>om From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Paul Keating <Paul(a)law.es<mailto:Paul@law.es>> Date: Friday, September 23, 2016 at 9:04 AM To: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver(a)timewarner.com<mailto:Bradley.Silver@timewarner.com>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives Phil, In furtherance to my last email responding to Mr. Levy, even an unreasonably priced domain is not infringing. It is important that we not mix up the concepts at issue. We are discussing both “preventative rights: and “curative rights”. The preventative rights mechanism should be severely limited because it acts as a restraint of market tendencies in the absence of actual infringement. Imposing preventative measures is akin to imposing a “prior restraint” which (certainly in the area of speech) is disfavored as a matter of public policy. The curative rights mechanism is the 2nd tool which permits rights holders to rectify an infringement that has actually occurred. Rights holders already have the ability to pursue legal claims against a registry who is intentionally targeting them by restricting access to domains other than by way of exorbitant pricing. The hurdles that the rights holders must overcome to succeed on such claims are understandably high – just as they are with any other claimant faced with a similar situation in a non-domain-related situation. However, such is life. It is not our place to alter the legal environment and create contractually-based claims that do not already exist in the law. I believe this was the import of the comment made during the last call asking to differentiate economic costs from “rights”. Sincerely, Paul Raynor Keating, Esq. Law.es[law.es]<https://urldefense.proofpoint.com/v2/url?u=http-3A__law.es_&d=DQMFaQ&c=FmY1…> Tel. +34 93 368 0247<tel:%2B34%2093%20368%200247> (Spain) Tel. +44.7531.400.177<tel:%2B44.7531.400.177> (UK) Tel. +1.415.937.0846<tel:%2B1.415.937.0846> (US) Fax. (Europe) +34 93 396 0810<tel:%2B34%2093%20396%200810> Fax. (US)(415) 358.4450<tel:%28415%29%20358.4450> Skype: Prk-Spain email: Paul(a)law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Friday, September 23, 2016 at 5:39 PM To: Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver(a)timewarner.com<mailto:Bradley.Silver@timewarner.com>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives I believe I just addressed that question in the email I posted – if unreasonably high sunrise pricing deters a rights holder from registering a domain corresponding to a verified TM registered in the TMCH then it may be registered in the general availability period by an infringer, which in turn imposes a variety of costs on the TM owner (including those of bringing a subsequent URS, UDRP, or judicial action) and also creates the possibility of confusion and harm for the general public. This is not to say that all Premium pricing is unreasonable, as it is generally recognized that certain words and terms have inherent additional value in the DNS context – it really requires a case by case analysis. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597<tel:202-559-8597>/Direct 202-559-8750<tel:202-559-8750>/Fax 202-255-6172<tel:202-255-6172>/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 11:10 AM To: Silver, Bradley; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” against what, though? How does high pricing contribute to trademark infringement? High pricing may deter purchases of domain names, no doubt, but with what result for the system overall? Rebecca Tushnet Georgetown Law 703 593 6759<tel:703%20593%206759> From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: TMCH review objectives I would add that the question of pricing feeds into the concept of effectiveness, because if the TMCH is serving as a database for registries to target brand owners for higher pricing based on the value of their brands, then this is antithetical to the TMCH’s primary goal to provide protection for verified right holders. From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 10:26 AM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] TMCH review objectives Hello, all. On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG – and the broader question of what the purpose of our TMCH review is. There seemed to be a desire to focus on the TMCH’s effectiveness. The predicate question, then, is: effectiveness at what? Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred. If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others. Yours, Rebecca Tushnet Rebecca Tushnet Georgetown Law 703 593 6759<tel:703%20593%206759> ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000<tel:212.484.6000> or via email at ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= ________________________________ No virus found in this message. Checked by AVG - www.avg.com[avg.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com&d=DQMFaQ&c=…> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ <ACL> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Re: [gnso-rpm-wg] TMCH review objectives
by Paul Keating Sept. 27, 2016

Sept. 27, 2016

Phil, In furtherance to my last email responding to Mr. Levy, even an unreasonably priced domain is not infringing. It is important that we not mix up the concepts at issue. We are discussing both ³preventative rights: and ³curative rights². The preventative rights mechanism should be severely limited because it acts as a restraint of market tendencies in the absence of actual infringement. Imposing preventative measures is akin to imposing a ³prior restraint² which (certainly in the area of speech) is disfavored as a matter of public policy. The curative rights mechanism is the 2nd tool which permits rights holders to rectify an infringement that has actually occurred. Rights holders already have the ability to pursue legal claims against a registry who is intentionally targeting them by restricting access to domains other than by way of exorbitant pricing. The hurdles that the rights holders must overcome to succeed on such claims are understandably high just as they are with any other claimant faced with a similar situation in a non-domain-related situation. However, such is life. It is not our place to alter the legal environment and create contractually-based claims that do not already exist in the law. I believe this was the import of the comment made during the last call asking to differentiate economic costs from ³rights². Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul(a)law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. 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IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: <gnso-rpm-wg-bounces(a)icann.org> on behalf of Phil Corwin <psc(a)vlaw-dc.com> Date: Friday, September 23, 2016 at 5:39 PM To: Rebecca Tushnet <rlt26(a)law.georgetown.edu>, "Silver, Bradley" <Bradley.Silver(a)timewarner.com>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives > I believe I just addressed that question in the email I posted if > unreasonably high sunrise pricing deters a rights holder from registering a > domain corresponding to a verified TM registered in the TMCH then it may be > registered in the general availability period by an infringer, which in turn > imposes a variety of costs on the TM owner (including those of bringing a > subsequent URS, UDRP, or judicial action) and also creates the possibility of > confusion and harm for the general public. > > This is not to say that all Premium pricing is unreasonable, as it is > generally recognized that certain words and terms have inherent additional > value in the DNS context it really requires a case by case analysis. > > > Philip S. Corwin, Founding Principal > Virtualaw LLC > 1155 F Street, NW > Suite 1050 > Washington, DC 20004 > 202-559-8597/Direct > 202-559-8750/Fax > 202-255-6172/Cell > > Twitter: @VlawDC > > "Luck is the residue of design" -- Branch Rickey > > > From: gnso-rpm-wg-bounces(a)icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On > Behalf Of Rebecca Tushnet > Sent: Friday, September 23, 2016 11:10 AM > To: Silver, Bradley; gnso-rpm-wg(a)icann.org > Subject: Re: [gnso-rpm-wg] TMCH review objectives > > TMCH¹s goal of ³protection² against what, though? How does high pricing > contribute to trademark infringement? High pricing may deter purchases of > domain names, no doubt, but with what result for the system overall? > > > Rebecca Tushnet > Georgetown Law > 703 593 6759 > > > From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] > Sent: Friday, September 23, 2016 11:00 AM > To: Rebecca Tushnet; gnso-rpm-wg(a)icann.org > Subject: RE: TMCH review objectives > > I would add that the question of pricing feeds into the concept of > effectiveness, because if the TMCH is serving as a database for registries to > target brand owners for higher pricing based on the value of their brands, > then this is antithetical to the TMCH¹s primary goal to provide protection for > verified right holders. > > > From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On > Behalf Of Rebecca Tushnet > Sent: Friday, September 23, 2016 10:26 AM > To: gnso-rpm-wg(a)icann.org > Subject: [gnso-rpm-wg] TMCH review objectives > > Hello, all. On the last WG call, concerns about pricing of domain names > during the Sunrise Period arose. This led to a question of whether pricing is > within the remit of this WG and the broader question of what the purpose of > our TMCH review is. There seemed to be a desire to focus on the TMCH¹s > effectiveness. The predicate question, then, is: effectiveness at what? Here > are some suggestions for discussion: (1) minimizing the cost of operating the > system for all concerned; (2) minimizing the number of actions that ultimately > need to be brought against infringing registrants; (3) minimizing the number > of noninfringing registrants whose legitimate uses are blocked or deterred. > If the system is reasonably balancing those objectives, I suggest, then it is > effective; potential changes should be directly related to improving > performance on one or more of these metrics without unduly hampering the > others. > > Yours, > Rebecca Tushnet > > > Rebecca Tushnet > Georgetown Law > 703 593 6759 > ================================================================= > Reminder: Any email that requests your login credentials or that asks you to > click on a link could be a phishing attack. If you have any questions > regarding the authenticity of this email or its sender, please contact the IT > Service Desk at 212.484.6000 or via email at ITServices(a)timewarner.com > > > ================================================================= > > ================================================================= > This message is the property of Time Warner Inc. and is intended only for the > use of the > addressee(s) and may be legally privileged and/or confidential. If the reader > of this message > is not the intended recipient, or the employee or agent responsible to deliver > it to the intended > recipient, he or she is hereby notified that any dissemination, distribution, > printing, forwarding, > or any method of copying of this information, and/or the taking of any action > in reliance on > the information herein is strictly prohibited except by the intended recipient > or those to whom > he or she intentionally distributes this message. If you have received this > communication in > error, please immediately notify the sender, and delete the original message > and any copies > from your computer or storage system. Thank you. > ================================================================= > > > No virus found in this message. > Checked by AVG - www.avg.com <http://www.avg.com> > Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 > _______________________________________________ gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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TMCH review objectives
by Rebecca Tushnet Sept. 26, 2016

Sept. 26, 2016

Hello, all. On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG - and the broader question of what the purpose of our TMCH review is. There seemed to be a desire to focus on the TMCH's effectiveness. The predicate question, then, is: effectiveness at what? Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred. If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others. Yours, Rebecca Tushnet Rebecca Tushnet Georgetown Law 703 593 6759

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Re: [gnso-rpm-wg] TMCH review objectives
by Steve Levy Sept. 26, 2016

Sept. 26, 2016

I’d also like to add my view that “protection” can take a number of different forms. Stopping someone from infringing upon one’s trademark is the most obvious one but protecting brand owners from having their trademarks held for ransom at an unreasonably high premium price is another. If, for example, [brand].TLD is priced at US$50000 as a premium domain it effectively prevents the brand owner from purchasing that domain and the website remains either non-resolved or perhaps as a registry advertisement. The public may then see this site and mistakenly believe that the brand owner has either gone out of business or is not devoting sufficient resources to promoting its brand online. Preventing this type of negative impact on the brand is another form of “protection”. Regards, Steve [cid:14EF9B53-43F8-43BA-A891-429046E0AED9] Steven M. Levy, Esq. Accent Law Group, Inc. 301 Fulton St. Philadelphia, PA 19147 United States Phone: +1-215-327-9094 Email: slevy(a)AccentLawGroup.com<mailto:slevy@accentlawgroup.com> Website: www.AccentLawGroup.com<http://www.accentlawgroup.com/> <http://www.accentlawgroup.com/>LinkedIn: www.linkedin.com/in/stevelevy43a/<http://www.linkedin.com/in/stevelevy43a/> ________________________________________ Notice: This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any attorney/client or other privilege. From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Friday, September 23, 2016 at 11:39 AM To: Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver(a)timewarner.com<mailto:Bradley.Silver@timewarner.com>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives I believe I just addressed that question in the email I posted – if unreasonably high sunrise pricing deters a rights holder from registering a domain corresponding to a verified TM registered in the TMCH then it may be registered in the general availability period by an infringer, which in turn imposes a variety of costs on the TM owner (including those of bringing a subsequent URS, UDRP, or judicial action) and also creates the possibility of confusion and harm for the general public. This is not to say that all Premium pricing is unreasonable, as it is generally recognized that certain words and terms have inherent additional value in the DNS context – it really requires a case by case analysis. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 11:10 AM To: Silver, Bradley; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” against what, though? How does high pricing contribute to trademark infringement? High pricing may deter purchases of domain names, no doubt, but with what result for the system overall? Rebecca Tushnet Georgetown Law 703 593 6759 From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: TMCH review objectives I would add that the question of pricing feeds into the concept of effectiveness, because if the TMCH is serving as a database for registries to target brand owners for higher pricing based on the value of their brands, then this is antithetical to the TMCH’s primary goal to provide protection for verified right holders. From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 10:26 AM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] TMCH review objectives Hello, all. On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG – and the broader question of what the purpose of our TMCH review is. There seemed to be a desire to focus on the TMCH’s effectiveness. The predicate question, then, is: effectiveness at what? Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred. If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others. Yours, Rebecca Tushnet Rebecca Tushnet Georgetown Law 703 593 6759 ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16

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Re: [gnso-rpm-wg] TMCH review objectives
by J. Scott Evans Sept. 26, 2016

Sept. 26, 2016

Clearly, even in the age of search engines, domains have value (real or perceived). If they did not, we wouldn’t have needed a DNS expansion and there would not be any such thing as a “premium” domain name. J. Scott J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing | Adobe 345 Park Avenue San Jose, CA 95110 408.536.5336 (tel), 408.709.6162 (cell) jsevans(a)adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Rebecca Tushnet <rlt26(a)law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Date: Friday, September 23, 2016 at 9:15 AM To: Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc(a)vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: I believe I just addressed that question in the email I posted – if unreasonably high sunrise pricing deters a rights holder from registering a domain corresponding to a verified TM registered in the TMCH then it may be registered in the general availability period by an infringer, which in turn imposes a variety of costs on the TM owner (including those of bringing a subsequent URS, UDRP, or judicial action) and also creates the possibility of confusion and harm for the general public. This is not to say that all Premium pricing is unreasonable, as it is generally recognized that certain words and terms have inherent additional value in the DNS context – it really requires a case by case analysis. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 11:10 AM To: Silver, Bradley; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” against what, though? How does high pricing contribute to trademark infringement? High pricing may deter purchases of domain names, no doubt, but with what result for the system overall? Rebecca Tushnet Georgetown Law 703 593 6759 From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: TMCH review objectives I would add that the question of pricing feeds into the concept of effectiveness, because if the TMCH is serving as a database for registries to target brand owners for higher pricing based on the value of their brands, then this is antithetical to the TMCH’s primary goal to provide protection for verified right holders. From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Friday, September 23, 2016 10:26 AM To: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] TMCH review objectives Hello, all. On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG – and the broader question of what the purpose of our TMCH review is. There seemed to be a desire to focus on the TMCH’s effectiveness. The predicate question, then, is: effectiveness at what? Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred. If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others. Yours, Rebecca Tushnet Rebecca Tushnet Georgetown Law 703 593 6759 ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> ================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ <ACL>

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