April 2017 - GNSO-RPM-WG - lists.icann.org

Thank you
by Phil Corwin April 23, 2017

April 23, 2017

Heartfelt thanks to my co-chairs Kathy Kleiman and J Scott Evans for sending these lovely flowers in memory of my dear mother on behalf of the RPM Review WG. I couldn't ask for better or kinder professional colleagues and friends. 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

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Information on the SMD files needed for Sunrise registrations
by Mary Wong April 21, 2017

April 21, 2017

Dear all, During the Sunrise Sub Team call today, it was suggested that information should be circulated to the full Working Group about the Signed Mark Data (SMD) files that demonstrate that eligibility for Sunrise registration has been verified by the TMCH. Collectively, what a SMD file is, how it is created and what it is used for can be found in the RPM Requirements and the TMCH Functional Specifications (both of which registries and registrars must comply with). · RPM Requirements: https://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirement… · TMCH Functional Specifications: https://www.ietf.org/archive/id/draft-ietf-regext-tmch-func-spec-02.txt It was also suggested that a tutorial be organized for Working Group members to walk through the information. In the interim, the following definitions and descriptions from these documents may be helpful as basic information (please refer to the documents themselves for the full descriptions and scope): Section 2.4.1, RPM Requirements: · Registry Operator MUST NOT Allocate or register domain names during or in connection with the Sunrise Period unless a valid SMD file from the Sunrise-Eligible Rights Holder matching the applied for domain name was provided and the validation procedures described in the Trademark Clearinghouse functional specification were performed. From the TMCH Functional Specifications: SMD, Signed Mark Data: A cryptographically signed token issued by the (trademark validator) to the (trademark holder) to be used in the Sunrise Period to apply for a Domain Name that matches a Domain Name Label of a (mark pre-registered with the TMCH). An SMD generated by an ICANN-approved trademark validator (TMV) contains both the signed token and the TMV's (public key cryptographic) certificate. SMD File: A file containing the SMD (see above) and some human readable data. · After a successful registration of a mark, the (trademark validator) returns an SMD File to the (trademark holder). The SMD File can then be used for registration of one or more domain names covered by the (trademark holder’s mark that was pre-registered with the TMCH) during the Sunrise Period of a TLD. SMD Revocation List: The SMD Revocation List is used by Registries (and optionally by Registrars) during the Sunrise Period to ensure that an SMD is still valid (i.e. not revoked). The SMD Revocation List is used during the Sunrise Period to validate SMDs received. · The SMD Revocation List contains all the revoked SMDs present in the (Trademark Clearinghouse Database) at the date and time it is generated. A new SMD Revocation List MUST be published by the TMDB twice a day, by 00:00:00 and 12:00:00 UTC. Registries MUST refresh the latest version of the SMD Revocation List at least once every 24 hours. Thanks and cheers Mary

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Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
by Paul Tattersfield April 20, 2017

April 20, 2017

Given (a) there are no extra fees for opting in or out of Sunrise and/or Claims notification services and (b) proof of use is already required for Sunrise, there are no new processes required. It is simple policy change to extend the proof of use to all TMCH marks and it would benefit all stakeholders including rights holders through the elimination of competition through gaming. I’m struggling to see why there should be any resistance to this small change? On Thu, Apr 20, 2017 at 1:17 AM, Michael Graham (ELCA) <migraham(a)expedia.com > wrote: > +1 > > > > Michael R. Graham > > > > *From:* gnso-rpm-wg-bounces(a)icann.org [mailto:gnso-rpm-wg-bounces@ > icann.org] *On Behalf Of *J. Scott Evans via gnso-rpm-wg > *Sent:* Wednesday, April 19, 2017 4:51 PM > *To:* Paul Tattersfield <gpmgroup(a)gmail.com> > *Cc:* gnso-rpm-wg(a)icann.org > *Subject:* Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise > Period > > > > We keep hearing all these outlandish claims of the poor folks cheated out > of an opportunity to express themselves or start a new business, but no > real proof. I hear all the same arguments I have heard since 2009 and from > the same groups with no proof. I also see no new voices claiming any of > this alleged harm. What I see is a group of stakeholders with an anti-IP > agenda making the same old arguments hoping to trim back consensus > solutions where compromises based on these arguments have already been made. > > > > J. Scott > > Sent from my iPhone > > > On Apr 19, 2017, at 4:33 PM, Paul Tattersfield <gpmgroup(a)gmail.com> wrote: > > I’m not sure I agree. The Claims Notices are likely to have a far bigger > impact on people not registering domains especially those who are not > professional registrants and have not seen a claims notice before. > > > > No Claims Notices should be issued without a substantive review of the > underlying goods and services. > > The idea that anyone can buy a piece of paper without any real goods or > services to protect and can then use that piece of paper to discourage > others from building real world businesses simply because some > jurisdictions give out those pieces of paper out like confetti under the > pretext of ideas they ‘might want to do in the future’ should be deeply > frowned upon by anyone participating in ICANN. > > Paul > > > > On Wed, Apr 19, 2017 at 7:56 PM, Jeremy Malcolm <jmalcolm(a)eff.org> wrote: > > Open questions 7 and 8 illustrate how the protections provided to > trademark holders through the TMCH have been applied too broadly by the > provider, opening the door for gaming and abuse by trademark holders, and > chilling of speech by affected third parties. This proposal also bears on > question 16 (Does the scope of the TMCH and the protections mechanisms > which flow from it reflect the appropriate balance between the rights of > trademark holders and the rights of non-trademark registrants?). > > It has been seen that the TMCH has facilitated trademark owners claiming > exclusive rights in domain names that they don’t exist in domestic > trademark law, such as words incorporated into design marks. Open question > 10, rather than addressing the potential for abuse, actually suggests a > measure that would allow even more non-trademarked terms to be locked up by > priority claimants. > > As a measure to address these problems, we propose eliminating the TMCH’s > Sunrise Registration service altogether. Although we also have concerns > about its Trademark Claims service and will likely propose its elimination > separately at a later date, the Sunrise Registration service is the most > urgent to eliminate, because it creates an absolute bar to third parties > registering domains that a Sunrise registrant has already claimed, whereas > the Trademark Claims service results in a warning to third parties but does > not absolutely preclude them from registering. > > We believe that the elimination of Sunrise Registrations would be the > simplest way to address the problems of gaming and abuse that have been > observed by working group members, not only in respect of design marks and > geographical words, but also the misuse of dubious trademarks over common > dictionary words such as “the”, “hotel”, “luxury”, “smart”, “one”, “love”, > and “flower” to lock up domains unrelated to the original trademark. > > If the Sunrise Registration system were widely used by trademark holders, > then it might be claimed that its elimination was disproportionate—but as > we have seen, this is not the case. There have been only about 130 Sunrise > Registrations per new domain. Such a small number of claims could be more > simply and efficiently handled simply by allowing those claimants to resort > to curative mechanisms such as the UDRP in the event that a third-party > registrant beats them to registering a domain over which they might have > made a claim. > > The benefits of the elimination of Sunrise Registrations would be: > > · An overall cost saving. > > · Streamlining of the public availability of domains in new > registries. > > · Elimination of the potential for gaming and abuse by putative > trademark holders who claim rights over domain names that do not correspond > to their domestic trademark rights. > > The costs would be: > > - Some trademark holders would be required to resort to curative > proceedings if domain names over which they have a legitimate claim are > registered by third parties. > > -- > > Jeremy Malcolm > > Senior Global Policy Analyst > > Electronic Frontier Foundation > > https://eff.org <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&da…> > > jmalcolm(a)eff.org > > > > Tel: 415.436.9333 ext 161 <(415)%20436-9333> > > > > :: Defending Your Rights in the Digital World :: > > > > Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.or…> > > PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122 > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o…> > > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://na01.safelinks.protection.outlook.com/?url= > https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso- > rpm-wg&data=02%7C01%7C%7C0e18d5b07aea47943d4408d4877c75c3% > 7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636282416004182733&sdata= > fZ88VMsRjujGitQovRkGfOctUusd1sufOBNGSw97Kn8%3D&reserved=0 > >

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Recommendation for Question #7
by Greg Shatan April 20, 2017

April 20, 2017

All, I am submitting the attached proposal in response to question 7. This proposal was prepared by several members of the IPC, but it is not a formal IPC proposal. Greg *Greg Shatan* C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc(a)gmail.com

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Proposal for Question 8: Geographic Indicators
by icannlists April 20, 2017

April 20, 2017

PLEASE NOTE REVISED EMAIL ADDRESS Dear Fellow RPM Participants: Below is my proposal for Question 8: Geographic Indicators. Although I am a member of the IPC, this is not a formal IPC proposal. Although it did have some support on the IPC List, it also had some detractors who wished changes to be made. As such, this should not be viewed as coming from the IPC. Proposal: GIs are not always trademarks. The TMCH is a place to lodge trademarks. Unless a GI is the subject of a national trademark registration, it should not be in the future, and should not have been in the past, included in the TMCH. For any GIs that are not the subject of a national trademark registration which are currently lodged in the TMCH, such GIs should not be renewed in the TMCH upon expiration. For any GIs that are currently in the TMCH that are the subject of a national trademark registration, such GIs should be subject to the same use requirements as traditional trademarks as applied to Sunrise registrations. To the extent that there is interest in finding a mechanism to lodge GIs that are not the subject of national trademark registration for use in as yet unidentified RPMs, study of the concept should be split off from this work and given its own study and thought. Best, Paul Paul D. McGrady Jr. ICANNLISTS(a)winston.com PS: Mary, can you please confirm receipt? ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.

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Re: [gnso-rpm-wg] [Ext] Proposal for Question 8: Geographic Indicators
by Mary Wong April 20, 2017

April 20, 2017

Thank you, Paul – yes, I confirm receipt and staff will compile the text as submitted into the document to be circulated to the Working Group containing all proposals received by the deadline. Cheers Mary From: icannlists <icannlists(a)winston.com> Date: Wednesday, April 19, 2017 at 14:11 To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Cc: Mary Wong <mary.wong(a)icann.org> Subject: [Ext] Proposal for Question 8: Geographic Indicators PLEASE NOTE REVISED EMAIL ADDRESS Dear Fellow RPM Participants: Below is my proposal for Question 8: Geographic Indicators. Although I am a member of the IPC, this is not a formal IPC proposal. Although it did have some support on the IPC List, it also had some detractors who wished changes to be made. As such, this should not be viewed as coming from the IPC. Proposal: GIs are not always trademarks. The TMCH is a place to lodge trademarks. Unless a GI is the subject of a national trademark registration, it should not be in the future, and should not have been in the past, included in the TMCH. For any GIs that are not the subject of a national trademark registration which are currently lodged in the TMCH, such GIs should not be renewed in the TMCH upon expiration. For any GIs that are currently in the TMCH that are the subject of a national trademark registration, such GIs should be subject to the same use requirements as traditional trademarks as applied to Sunrise registrations. To the extent that there is interest in finding a mechanism to lodge GIs that are not the subject of national trademark registration for use in as yet unidentified RPMs, study of the concept should be split off from this work and given its own study and thought. Best, Paul Paul D. McGrady Jr. ICANNLISTS(a)winston.com PS: Mary, can you please confirm receipt? ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.

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Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH
by policy＠paulmcgrady.com April 20, 2017

April 20, 2017

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REMINDER: Deadline is TOMORROW (19 April) for Proposals on Open TMCH Questions
by Mary Wong April 19, 2017

April 19, 2017

Dear Working Group members, Just a gentle reminder to send any proposals or recommendations you may have, for proceeding with and possibly resolving the few open questions on the TMCH, to this mailing list by tomorrow, 19 April (close of business in your time zone). Staff will compile all proposals received for the Working Group to consider on the next Working Group call next Wednesday (26 April). To recap, the three open questions that are currently under discussion are: 1. TMCH Question 7 on “design marks” o On the last call, Working Group members had discussed whether the TMCH is intended to: (1) only accept “word marks” in the sense that the entire mark comprises text only; (2) also include marks comprising stylized text (but without a figurative/image element); and/or (3) accept device/image marks where the text element is predominant (i.e. Deloitte’s current practice), and the appropriate approach when the text element is (and is not) disclaimed). o The Working Group noted that different jurisdictions may have different approaches to these marks, and that the TMCH was intended to accept marks from all jurisdictions. For further background, the December 2009 STI Report stated that “The trademarks to be included in the [TMCh] are text marks because “design marks” provide protection for letters and words only within the context of their design or logo and the STI was under a mandate not to expand existing trademark rights”, while the previous (May 2009) IRT Report noted that the TMCH “should be able to accommodate all types of registered trademarks, including word marks and device (logo) marks that contain a word element”. Both the IRT and STI tried to design their recommendations in accordance with the principle that “recommendation should protect the existing rights of trademark owners, but neither expand those rights nor create additional legal rights”. o The TMCH Guidelines that explain Deloitte’s current practice have already been circulated previously – for your convenient reference, they can be found here: http://trademark-clearinghouse.com/sites/default/files/files/downloads/TMCH… 2. TMCH Question 8 on Geographical Indications, Designations of Origin and similar identifiers o In Copenhagen, Deloitte had discussed both the number of, as well as how it verifies, “marks protected by statute or treaty” with the Working Group, noting that this category could well include geographical indications although the current Guidelines do not require these to be treated separately. o Paul McGrady had asked staff some follow up questions, the answers to which we replicate below for your review. 3. TMCH Question 10 on Identical Match o The Working Group had agreed to return to this question following its review of the Analysis Group’s Revised Report. Please see pages 27-35 of the report for the Analysis Group’s findings on this topic: https://community.icann.org/download/attachments/64066042/Analysis%20Group%… Please let Amr and I know if you have further questions or need more information. Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Thursday, April 13, 2017 at 10:42 To: Paul McGrady <policy(a)paulmcgrady.com>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: Re: [Ext] RE: [gnso-rpm-wg] FOR CONSIDERATION/ACTION: 19 April Deadline for Proposals on Open TMCH Questions Hello Paul and everyone, I’m not sure it will be feasible to get additional specific input from Deloitte within this timeframe, but hopefully the following observations can be of assistance to you and other Working Group members as you consider the G.I. issue. I’ve inserted them inline in blue in the hope that this makes things easier to review and comment on. a. Are there current any GIs lodged in the TMCH? MW: Based on the discussion with Deloitte in Copenhagen and their updated report (reattached here for ease of reference), they do not specifically check whether a TMCH submission made under the category of “mark protected by statute or treaty” is or is not a G.I. (however defined). As such, we will not know the answer to this question unless all the successfully-validated marks from this category are disclosed and a substantive examination performed of whether any are considered G.I.s. b. If so, how many? MW: See above. Also, we know from their report that out of 98 submissions in this category, 75 were successfully validated. c. If so, how did this come about since GIs were not part of the TMCH framework initially? MW: While there is no specific category for GIs (or AoCs or DoOs etc.), the category of “mark protected by statute or treaty”, separate from the categories of “registered trademark” and “court-validated mark” was included in the Applicant Guidebook at some point (I will need to check but I believe it was sometime in 2011) as a result of community discussions and public comments received on earlier versions of the AGB. Staff will research this and come back with the date and context. As staff suggested previously, one question for the Working Group to consider – in relation both to device/image marks and GIs – is whether the scope of the marks currently being accepted for validation by the TMCH is within, or exceeds, the policy intent of the GNSO (especially the original policy principles adopted in 2007 following the PDP on Introduction of New gTLDs). d. If so, when did GIs first appear in any Trademark Requirement Documents or the like and were such documents published for public comment? MW: See above response. As mentioned, staff will go through the various AGB comment periods and documents to see what additional specific information can be provided on this topic. e. If not, why not? MW: See note on Question (e). f. What does Deloitte think “marks protected by statute” means? MW: Section 2.4 of the TMCH Guidelines (http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/…) may be helpful – it lists the materials and information to be submitted for this category of marks and notes expressly that “the relevant statute or treaty must be in effect at the time the mark is submitted to the Clearinghouse for inclusion. These marks may include but are not limited to: geographical indications and designations of origin.” g. Are there use requirements for GIs? If not, why not? MW: Going by the publicly available documentation, there does not appear to be a specific “proof of use” requirement associated with the category of “marks protected by statute or treaty” (though please note that staff cannot speak for, nor have we specific confirmation from, Deloitte in this regard). For context on the “proof of use” requirement for Sunrise registrations, this April 2011 Explanatory Memo from ICANN on the changes made to the then-current version of the AGB may be helpful: https://archive.icann.org/en/topics/new-gtlds/trademark-protection-claims-u…. Since our deadline to make a proposal is Wednesday, we really need these answers no later than Monday morning, but practically speaking COB on Friday would be even better. Kind regards, Paul From: gnso-rpm-wg-bounces(a)icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Mary Wong Sent: Wednesday, April 12, 2017 1:47 PM To: gnso-rpm-wg(a)icann.org Subject: [gnso-rpm-wg] FOR CONSIDERATION/ACTION: 19 April Deadline for Proposals on Open TMCH Questions Dear all, Pending the circulation of the full set of Action Items and Notes from the Working Group call held earlier today, please note the following: o Working Group members are invited to submit proposals/recommendations concerning the three currently-open TMCH questions (see below for the questions) by close of business in your time zone on Wednesday 19 April. Please send your proposal to this mailing list. As noted previously, any such proposal/recommendation should be specific and include a description of the benefits/costs and advantages/disadvantages. Following receipt of all proposals, the co-chairs will work with staff to propose a constructive format for discussion of all proposals for the Working Group to consider. o There will not be a Working Group call next Wednesday 19 April, although the Sub Teams are expected to continue meeting. The Working Group will reconvene on Thursday 27 April 0300 UTC (i.e. Wednesday evening/night for our members in the Americas). The three currently-open TMCH questions are: TMCH Question 7: How are design marks currently handled by the TMCH provider? (one proposal received from Kathy Kleiman) TMCH Question 8: How are geographical indications, protected designations of origin, and protected appellations of origin currently handled by the TMCH provider? TMCH Question 10: Should the TMCH matching rules be retained, modified, or expanded, e.g. to include plurals, ‘marks contained’ or ‘mark+keyword’, and/or common typos of a mark? Thanks and cheers Mary & Amr From: Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Date: Monday, April 10, 2017 at 17:56 To: "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: Agenda and documents for Wednesday Working Group meeting (12 April) Dear all, The proposed agenda for our call this Wednesday (12 April), which is scheduled as a 90-minute call commencing at 1600 UTC, is as follows: 1. Roll call (via Adobe Connect and phone bridge only); updates to Statements of Interest 2. Discuss remaining open TMCH Charter questions (see attached table and notes, below) 3. Overview by Co-Chairs on preliminary recommendations related to RPMs from the Competition, Consumer Protection & Consumer Trust Review Team (CCT-RT) (see attached document) 4. Administrative details: e.g. Working Group & Sub Team meeting dates for the weeks of 17 & 24 April 2017, confirm scheduled day for 4th rotating (0300 UTC) Working Group call 5. Next steps/next meeting For Agenda Item #2, please note the following: As these questions have already been the subject of substantial Working Group discussion, the aim at this meeting is to allow Working Group members who wish to propose recommendations for the full Working Group to consider to do so. Any such proposals or recommendations should be specific, include a list of the benefits and costs, advantages and disadvantages, and be sent to the Working Group mailing list no later than 7 days following the call this week (i.e. 19 April). Thanks and cheers Mary

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Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH
by J. Scott Evans April 18, 2017

April 18, 2017

There are only possible gaming scenarios: 1.) A party wanting to speculate with a name and wanting to ensure it gets the name files for a trademark registration is a jurisdiction where proving use to obtain registration is not require (96% of the jurisdictions). This party gets such a registration, dummies up some use and registers the trademark in the Clearinghouse; or 2.) A trademark owner has taken the decision that it must own its trademark in all new TLDs. While perfectly within the rights of a registrant in the Clearinghouse, this may be seen as overreaching by many parties. The examples that you and Rebecca and George have mentions (e.g., CLOUD, HOTEL) are dictionary terms. These could be genuine trademarks, but could also be more in the Category 1 above. So it seems to me that we need to come up with reasonable, efficient solutions that will solve these two issues. I don’t think you need to know the top 500 trademarks registered in the TMCH. The confidentiality question has been asked and answered. There is NO CONSENSUS to open the database to the public. There is consensus that issues appear to exist. So, let’s work on the parts where we have clear consensus. J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans(a)adobe.com www.adobe.com On 4/13/17, 3:30 PM, "gnso-rpm-wg-bounces(a)icann.org on behalf of Paul Keating" <gnso-rpm-wg-bounces(a)icann.org on behalf of paul(a)law.es> wrote: So wE are to presume there is gaming/abuse, guess at what types of gaming/abuse have occurred, Then propose a solution based upon the above? And all because of an argument that the TMCH database is confidential notwithstanding there being neither contractual nor a legal basis for such an argument? And when one side proposes limitations on the type of TMCH data being requested (to address the confidentiality argument) opposition says it ism"chasing a rathole"? Now it is suggested that we merely rely upon peoples memory and presumptions.... Doesn't sound like an effective (or correct) way to co duct our affairs. Sent from my iPad > On 13 Apr 2017, at 20:59, George Kirikos <icann(a)leap.com> wrote: > > Hi folks, > > (changing the subject accordingly) > > On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg > <gnso-rpm-wg(a)icann.org> wrote: >> I think all of this is a huge red herring. If my memory serves me, there >> have only been about 130 Sunrise Registrations. That is a very small number >> when compared to the number of second level domains registered in the new >> TLDs. I think it is safe to assume that there has been some gaming. We don’t >> need to do an exhaustive investigation. What we need to do is look at >> reasonable solutions to the gaming problem. I have not seen any proposals >> for you on how to handle the problem. We need to close down this >> unproductive discussion and move on to finding solutions to the problem of >> gaming. > > These numbers stand for the proposition that the sunrise period should > be entirely eliminated, given that folks concede it "is a very small > number", and thus is not conferring many benefits to those who > register them defensively, since they're not utilizing the procedure. > And the gaming that does exist is amplified, since it means that a > higher percentage of the sunrise registrations are gamed. It could be > that 30%, or even 50% of sunrise registrations are gamed, given the > various blog posts and examples provided to this mailing list already > (and how many others might exist "under the radar", that some folks > are trying to keep hidden due to the lack of transparency of the > TMCH). > > Consider a "thought experiment" as to what would happen if Sunrise > registrations and the TMCH were eliminated. Those 130 registrations > would shift to either landrush or to general availability. > > For those who are "gaming" the sunrise, they'd now be on an equal > footing as everyone else. > > For those legitimate TM holders, they can either register in landrush > (or general availability), *or* they have curative rights protection > mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* > domains which conflict with their TM rights are registered by someone > else and misused. > > I could even support a "hybrid" (horse trading, as Phil called it > yesterday) model, where landrush imposed **additional burdens** on > registrants, e.g. paying costs if they lose a UDRP), but then that > extra burden is eliminated during general availability (as it is > today). This way, TM holders and legitimate end users who don't have > trademarks but have non-conflicting uses, etc. are on equal footing > during a landrush. > > I think many people are overly protective of the TMCH & sunrise period > not because it's "working", but because it's an opportunity for extra > consulting, revenue streams, etc. e.g. lawyers can tell their clients > "get registered", and they can make money from the filing fees, etc. > There's a huge amount of money being wasted, in my voice, that can be > redirected to other things (like curative rights, better education, > etc.). > > Suppose that of the 130 sunrise registrations, half of them got > registered by legitimate TM owners in landrush. Of the 65 that were > registered by someone else, how many of those would actually be cases > of cybersquatting? I would suggest it's a small number, given the > overall stats of UDRPs relative to registrations. Even if it was a > massive 2% (actual percentage is much, much lower), that might mean 1 > extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might > mean an extra 250 UDRPs per year. That's a relatively negligible > amount. > > If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) > is $5,000 or so, that's $1.25 million/yr. > > TMCH revenues, by contrast, are on the order of $5 million/yr for > Deloitte. And perhaps another $5 million or more per year for all the > TM agents, etc. filing on behalf of clients. Let's call it $10 > million+ for TMCH-related fees on those using that system. > > Trading $10 million/yr in "preventive" costs for $1.25 million/yr in > "enforcement" costs -- that's a no-brainer for TM holders. > > And if, as I argued above, if some of those UDRP enforcement costs are > shifted to the losers (for landrush registrations), then the economics > are even that much stronger for the elimination of the sunrise period > (since that $1.25 million becomes even lower, due to cost recovery). > > And of course, a system that has no landrush definitely benefits > ordinary registrants and prospective registrants who simply want a > "good" name, or at least a fair chance at one, and don't want to see > "THE" or "FLOWERS" or "HOTEL" or all of the other common words being > grabbed in sunrise. > > Processes would be simplified for registry operators and registrars, > if sunrises and TMCH were eliminated, which saves them money (which > gets passed along as savings for consumers). TLDs would launch faster, > too. The best second-level strings would be "spread around" more, > which is probably a good thing (except to some who feel, wrongly, that > they have exclusive rights to common dictionary terms, etc., which is > not something the law supports). > > So, I hope folks will give serious consideration to what would happen > if sunrise was completely eliminated. With a few small tweaks (as > noted above), it could be much better than we have for most people > (except for those exploiting the current system). > > Sincerely, > > George Kirikos > 416-588-0269 > https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.co… > > P.S. I know I've not written much above about the TM Claims notice > aspect of the TMCH, but those are obviously have a chilling effect, > with a 96%+ abandonment rate of registrations. A 90 day claims notice, > which determined cybersquatters are going to ignore anyway, simply > confuses legitimate registrants. The "ongoing notifications service" > aspect of the TMCH is available through other companies, e.g. > DomainTools or other domain monitoring services. > > P.P.S. Some might argue that you can never collect $5K from > registrants if they lose a UDRP. Shift some of that to the registrar, > who can then police their own clients, a sort of "know your client" > rule for those participating in landrushes. One can even envision a > system of insurance, so that those who are involved in risky domain > name registrations pay higher "insurance" (to indemnify their > registrars) than less risky registrants who don't engage in > cybersquatting. Or require a deposit at the start of the UDRP process > (if one side doesn't post a deposit, they'd be in default). > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o… _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o…

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Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH
by policy＠paulmcgrady.com April 18, 2017

April 18, 2017

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