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

Agenda and documents for Wednesday Working Group meeting (12 April)
by Mary Wong April 10, 2017

April 10, 2017

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] Action Items, Slides and Notes from the Working Group call held earlier today
by Nahitchevansky, Georges April 10, 2017

April 10, 2017

Make a list of 50 common words that have real value, then do the research as I suggest. If you need help on value, you might start with common words that generated large amounts of money (business, sex, travel, music etc.) in the. Com world. If you want to add these other words, be my guest (make it 60 then or even a 100). The point is simply that we shouldn't be spending time arguing over something that is nothing more than speculation. ‎ Original Message From: Rebecca Tushnet Sent: Sunday, April 9, 2017 9:33 PM To: Nahitchevansky, Georges Cc: Paul Keating; gnso-rpm-wg(a)icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today So your argument is that the top ten matches in the audit report such as hotel, cloud, and smart are not common words? If that is not evidence worth investigating, you need to explain why. And even if other common words like zebra, dog, and fight remain unregistered, that doesn't really help someone who wants to talk about hotels, clouds, or something smart. Rebecca Tushnet Georgetown Law 703 593 6759 On Sun, Apr 9, 2017 at 6:57 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com> wrote: > It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened. > > Original Message > ‎ > From: Rebecca Tushnet > Sent: Sunday, April 9, 2017 4:38 PM > To: Nahitchevansky, Georges > Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg(a)icann.org > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today > > > How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable? > > Sent from my phone. Apologies for terseness/typos. > >> On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com> wrote: >> >> Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. ‎Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois. >> >> >> >> Original Message >> From: Paul Keating >> Sent: Sunday, April 9, 2017 3:31 PM >> To: Rebecca Tushnet >> Cc: gnso-rpm-wg(a)icann.org >> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today >> >> >> I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech. >> >> Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression. >> >> The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious. >> >> So this is not a rabbit hole. >> The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. >> We must determine if abuse has occurred. >> The contents of the TMCH database is very much relevant. >> If we are to be denied information relevant to the database we must assume the worst. >> For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, >> Freedoms of speech is simply too important to ignore. >> >> For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson. >> >> Sent from my iPad >> >>> On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet(a)law.georgetown.edu> wrote: >>> >>> Following up on my post from yesterday, let's make this more specific: >>> I see clear free speech issues that can arise from an attempt to >>> register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, >>> nyc.x and the like. Those along with forex, hotel, one, london, and >>> abc, are the top ten downloads from the TMCH. Of course, as Michael >>> K. indicates, we'd know more about how many dictionary terms are beingdom >>> blocked if there were more transparency, but what we do know right now >>> should be concerning. >>> Rebecca Tushnet >>> Georgetown Law >>> 703 593 6759 >>> >>> >>>> On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >>>> My responses are in-line. >>>> >>>> G >>>> reg >>>> >>>> >>>> On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas(a)gmail.com> >>>> wrote: >>>>> >>>>> Hi, >>>>> >>>>> I think that Michael Graham brings up a salient point in terms of falling >>>>> too far down the rabbit hole on background matters, but I should address a >>>>> few issues in response to questions that were directly asked of me. >>>>> >>>>> First off, while Greg is correct to point out that the UDHR is not >>>>> formally legally binding as a UNGA resolution, it is (quite literally) the >>>>> textbook example of customary international law. I realize that can be a >>>>> fuzzy concept to rely on, but luckily I don't have to rely on it because the >>>>> freedom of expression protections in the UDHR are substantially identical to >>>>> those found in the ICCPR, which IS a formally binding treaty. >>>> >>>> >>>> Binding on states. Of course, ICANN is not a state. Luckily, we have the >>>> new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which >>>> states that one of ICANN's eight Core Values (which must be subject to a >>>> balancing analysis involving all Core Values). is "within the scope of its >>>> Mission and other Core Values, respecting internationally recognized human >>>> rights as required by applicable law." The Bylaw specifically notes that >>>> "This Core Value does not create, and shall not be interpreted to create, >>>> any obligation on ICANN outside its Mission, or beyond obligations found in >>>> applicable law." As such, ICANN's obligations do not go beyond what would >>>> otherwise be required by applicable law. There's been a great deal of >>>> discussion of this in CCWG-Accountability WS1 and in the Human Rights >>>> Subgroup of WS2, so I won't go further into the concepts here, which would >>>> be a rabbit hole down a rabbit hole from the viewpoint of this group. >>>>> >>>>> >>>>> Also, while I appreciate Greg's caution against "cherrypicking" by viewing >>>>> Article 19 in isolation, in this context that argument is just a >>>>> smokescreen. >>>> >>>> >>>> Concerns about cherrypicking are in no way a "smokescreen" -- unless the >>>> reference is to the saying "where there's smoke, there's fire." John >>>> Levine's blog nicely expressed a number of concerns about such >>>> cherrypicking, especially for what he calls the "fashionable human rights," >>>> so I won't repeat them here. It is important to keep in mind, as Michael >>>> notes, that "human rights are fundamentally about balance," so perhaps we >>>> are not so far apart, as "balance" and "cherrypicking" are mutually >>>> exclusive concepts. >>>> >>>> Of course the UDHR and ICCPR need to be viewed holistically - that >>>> understanding in no way supports an argument that domains are not speech. >>>> >>>> I'm puzzled by the second part of this sentence. I think this point is >>>> unrelated to the issue of whether or not domain names are speech, so it >>>> neither supports nor negates any argument on that topic. >>>> >>>> There's no conflict between believing in personal privacy as protected by >>>> the ICCPR (as I do), and believing in the need to combat hate speech as >>>> spelled out in the ICCPR (as I do), and believing in freedom of expression. >>>> Human rights are fundamentally about balance (more on that in a second). >>>> >>>> There are certainly conflicts (e.g., between combating hate speech and >>>> supporting free speech); the issue is how to balance these countervailing >>>> issues to resolve these conflicts. >>>>> >>>>> >>>>> With regard to Ballantyne, Davidson & McIntyre, I probably should have >>>>> been more specific in my original post. Of course, as Greg notes, the case >>>>> is not specifically about domain names - which would be a pretty niche area >>>>> for the Human Rights Committee to dig into. But the decision contains the >>>>> clearest statement of the extent of what constitutes "speech" under the >>>>> ICCPR, namely that Article 19: "must be interpreted as encompassing every >>>>> form of subjective ideas and opinions capable of transmission to others". >>>>> It's an incredibly broad formulation - to cover virtually anything that >>>>> conveys meaning. I, personally, can't see an interpretation of that that >>>>> doesn't include domain names. >>>> >>>> >>>> This is not really that broad a formulation -- it dovetails nicely with the >>>> concept of "expressive speech" under US law (as in the excerpt from Gibson). >>>> Furthermore, there is a considerable difference between the speech >>>> constituting "subjective ideas and opinions" protected in Ballantyne and the >>>> "incredibly broad formulation" that would elevate "virtually anything that >>>> conveys meaning." "Subjective ideas and opinions" in no way embraces domain >>>> names per se; whether and to what extent it embraces domain names is >>>> certainly not a question answered in Ballantyne. >>>>> >>>>> >>>>> With regard to Gibson v. Texas - I don't want to dig too deeply into this >>>>> because, honestly, US law is not my specialisation. But I think that part of >>>>> the disconnect between our positions is due to a particular aspect of the >>>>> American understanding of free speech, that's sort of different to how it's >>>>> understood virtually everywhere else. Under most systems, including the >>>>> international example I just cited, virtually everything is classed as >>>>> "speech", and then there's a balancing as to whether particular restrictions >>>>> are justified. But because of the absolutist way the US Constitution is >>>>> phrased ("Congress shall make no law"), the Courts have had to go through >>>>> some unusual legal gymnastics to find that speech that they feel justified >>>>> restricting isn't actually speech. >>>> >>>> >>>> Simply reading the excerpt from Gibson v. Texas in my prior email shows that >>>> this "speech/not speech" analysis is incorrect. Gibson, and the cases cited >>>> in it, distinguish between protected speech and speech that that is "not to >>>> be protected." Specifically, Gibson mentions that "courts have held that >>>> domain names that use trademarks to misidentify the source of a product are >>>> outside the reach of the First Amendment" and also cites a line of cases >>>> where "the domain name was actually held not to be protected speech because >>>> it was not expressive, not because it was misleading." More broadly, the >>>> idea that the US approach to free speech is anomalous is incorrect. Of >>>> course, free speech regimes vary broadly throughout the world -- so there's >>>> no such thing as a single "understanding of free speech... virtually >>>> everywhere else" aside from the US. Unfortunately, there are many places in >>>> the world where there is no understanding of free speech at all.) If the US >>>> approach to free speech tends to be different, it is in a greater tolerance >>>> for controversial and offensive speech (what John Levine calls "the >>>> absolutist U.S. first amendment approach"). This is why US law doesn't find >>>> it so easy to restrict alleged "hate speech" as "virtually everywhere else", >>>> and also why I can't be so comfortable in finding "no conflict" between free >>>> speech and restricting hate speech. (And I say this as a member of a group >>>> that is finding itself increasingly on the wrong end of both offensive >>>> speech and hate speech.) >>>>> >>>>> >>>>> So, without trying to belabour these issues, my point in the above is not >>>>> to try and invalidate the trademark protection system - indeed, Greg's quite >>>>> right to point out that trademarks are also speech. My point here is simply >>>>> to try and demonstrate that there are free speech issues at play. >>>> >>>> >>>> It's clear that this is false as a general statement, unless this is meant >>>> as a statement that could possibly true in a large enough sample, like >>>> "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one >>>> sees clear distinctions being drawn being "subjective ideas and opinions" >>>> and speech that is "not expressive" or "inherently misleading." This is >>>> probably a good time to note that the UDHR and the ICCPR both refer to >>>> "freedom of expression" and not to "free speech." So, it would be more >>>> proper to discuss whether "expressive speech" is at issue, not whether the >>>> over-broad "virtually anything that conveys meaning" is at issue, before we >>>> even get to the question of whether free speech issues are at play, to what >>>> extent, and how that might affect any discussion that is relevant to this >>>> Working Group. >>>> >>>>> >>>>> To me, that's not a controversial point - and if we can agree on that, >>>> >>>> >>>> I don't think we can agree on that, and certainly not as an assumed >>>> agreement from which one can proceed blithely on. Rather, I think that is >>>> an elemental aspect of the discussion, and as noted above, at best >>>> "controversial" and possibly sometimes true, and at worst false (at least as >>>> a general statement). >>>> >>>> As an aside, it's worth noting what Article 19 of the ICCPR actually >>>> protects: "the right to hold opinions without interference" and "the right >>>> to freedom of expression; this right shall include freedom to seek, receive >>>> and impart information and ideas of all kinds, regardless of frontiers, >>>> either orally, in writing or in print, in the form of art, or through any >>>> other media of his choice." I admit to struggling to find instances where >>>> the right to hold opinions or to express oneself freely is truly being >>>> violated in this context -- especially in a world where holding or >>>> expressing an opinion can come under threat of oppression, suppression, >>>> violence, imprisonment or worse. As someone who strongly supports First >>>> Amendment rights and who has worked on litigation defending First Amendment >>>> freedoms, I wonder whether this discussion trivializes free speech concerns >>>> rather than promoting them. That is not to dismiss the possibility of free >>>> speech concerns here, but just to say that, to the extent there is a viable >>>> point here, it pales in comparison to the significant freedom of expression >>>> concerns elsewhere (including elsewhere on the Internet, where access to >>>> websites with undesirable opinions or expression, or even to the Internet as >>>> a whole, is under escalating attack). >>>> >>>> >>>>> >>>>> then that is relevant to the transparency question, since in my mind it >>>>> bolsters arguments for why openness in the system is important. >>>> >>>> >>>> I don't get the logical leaps here, from the possibility of a free speech >>>> issue, to the claimed relevance to the transparency question, to the even >>>> more attenuated idea that this bolsters arguments regarding changing access >>>> rules for the TMCH. In other words, I don't really think that any of this >>>> changes the discussion on TMCH database access, nor do I really think it is >>>> relevant to any of the work we are undertaking right now. That is not to >>>> say that this is an uninteresting discussion (or else I would not have >>>> engaged in it), just that it is a rabbit hole in relation to our work. >>>>> >>>>> >>>>> Best, >>>>> >>>>> Michael >>>>> >>>>> On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc(a)gmail.com> >>>>> wrote: >>>>>> >>>>>> It's important to keep in mind that the rights set forth in the UDHR are >>>>>> interrelated and interdependent, so understanding the applicability of any >>>>>> one Article also requires understanding the applicability of the other >>>>>> rights in the UDHR, including some which may be countervailing to others. >>>>>> Looking at Article 19 in isolation is "cherrypicking." A recent CircleID >>>>>> article by John Levine is quite enlightening on this very point: >>>>>> >>>>>> http://www.circleid.com/posts/20170401_human_rights_and_regular_internet_us… >>>>>> >>>>>> The article is short, but for those who don't get there, this quote goes >>>>>> to the heart of the matter: "it devalues the whole topic of human rights to >>>>>> pay attention only to a few fashionable rights, while ignoring ones that are >>>>>> at least as important in people's daily lives." >>>>>> >>>>>> (It should also be noted that the UDHR, while adopted by the United >>>>>> Nations and widely used, does not constitute some form of "universal law" >>>>>> nor is it universally accepted.) >>>>>> >>>>>> The case mentioned, Gibson v. Texas, has portions that are directly >>>>>> applicable to the discussion at hand. However, the Gibson decision actually >>>>>> distinguishes cases involving trademarks from the situation in that case. >>>>>> As a matter of fact, the Gibson case tells us that there are at least two >>>>>> types of domain names that do not constitute speech protected by the First >>>>>> Amendment: domain names that infringe trademarks, and domain names that do >>>>>> not constitute "expressive speech." >>>>>> >>>>>> (In other words, there can be no "freedom of expression" issue when the >>>>>> speech is not expressive.) >>>>>> >>>>>> Before getting to an excerpt from the case, it's important to note that >>>>>> the court did not find that domain names are speech, much less find that >>>>>> domain names are speech protected by the First Amendment. The court made no >>>>>> findings about all domain names. Rather, the court assumed, for the purpose >>>>>> of considering a motion to dismiss, that the domain name in question >>>>>> (texasworkerscomplaw.com) constituted commercial speech. It's also >>>>>> important to note that the case involved the Constitutionality of a law that >>>>>> broadly prohibited the use of the terms "Texas" and "workers comp," and not >>>>>> a trademark infringement matter. >>>>>> >>>>>> The excerpt is quite instructive: >>>>>> >>>>>> >>>>>> In order for speech to fall outside of the First Amendment’s protection, >>>>>> the speech must either be “inherently likely to deceive,” or “the record >>>>>> [must] indicate[] that a particular form or method of advertising has in >>>>>> fact been deceptive.” R.M.J., 455 U.S. at 202. >>>>>> >>>>>> >>>>>> Appellees primarily argue that the Texas statute is constitutional >>>>>> because Gibson’s domain name amounts to inherently misleading speech. In >>>>>> support of this proposition, they cite to a series of cases in which courts >>>>>> have held that domain names that use trademarks to misidentify the source of >>>>>> a product are outside the reach of the First Amendment. The case law cited >>>>>> by Appellees, however, is unique to the field of trademark infringement, >>>>>> see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does >>>>>> not necessarily extend to a case such as this one, where Texas is >>>>>> prohibiting Gibson from using words that are otherwise in the public >>>>>> domain.[1] Cases involving trademark infringement involve inherently >>>>>> deceptive speech because they contain a significant risk that an infringing >>>>>> party will freeload on the goodwill that has been created by the original >>>>>> trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. >>>>>> Texas has made no showing that its own talents and energy contributed to the >>>>>> creation of any goodwill in the name “texasworkerscomplaw.com.” See San >>>>>> Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 >>>>>> (1987). Instead the regulation at issue is forward-thinking; intended to >>>>>> prohibit confusion for individuals seeking information from the government >>>>>> agency. It is not retrospective in the same way as most trademark >>>>>> litigation, which is generally intended to preserve the reputation that has >>>>>> been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, >>>>>> the case law cited by Appellees is inapposite. >>>>>> >>>>>> >>>>>> ________________________________ >>>>>> >>>>>> [1] In most of the cases cited by Appellees the domain name was actually >>>>>> held not to be protected speech because it was not expressive, not because >>>>>> it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. >>>>>> 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & >>>>>> Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for >>>>>> Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, >>>>>> Gibson’s domain name is expressive because it does more than simply mimic >>>>>> the state agency’s website or identify a source of Texas Workers’ >>>>>> Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain >>>>>> name is intended to direct visitors to a forum for discussing workers’ >>>>>> compensation laws and their potential reform, as well as to convey to >>>>>> visitors the message of Gibson’s website as a whole. Accordingly, in the >>>>>> context of this case, the domain name is “‘sufficiently imbued with the >>>>>> elements of communication’” to place it in the realm of expressive speech. >>>>>> Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. >>>>>> 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)). >>>>>> >>>>>> Greg Shatan >>>>>> >>>>>> >>>>>> Greg Shatan >>>>>> C: 917-816-6428 >>>>>> S: gsshatan >>>>>> Phone-to-Skype: 646-845-9428 >>>>>> gregshatanipc(a)gmail.com >>>>>> >>>>>> >>>>>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas >>>>>> <mkaranicolas(a)gmail.com> wrote: >>>>>>> >>>>>>> It's an interesting question. Different national courts have handled >>>>>>> the issue in different ways. In the US, for example, the Fifth Circuit >>>>>>> Court of Appeals found in Gibson v. Texas that domain names are >>>>>>> protected as speech under the 1st amendment. But freedom of expression >>>>>>> in the US context tends to be understood differently than elsewhere, >>>>>>> since the way it's protected under the US constitution is a bit >>>>>>> different from how most constitutions frame their equivalent >>>>>>> protections. >>>>>>> >>>>>>> That said - when you're asking about Article 19, the discussion comes >>>>>>> at the international level where, as far as I know, there's no single >>>>>>> authoritative treatment to point to. Generally, discussions of Article >>>>>>> 19 by standard setting bodies tend to focus on the sharper and more >>>>>>> controversial issues: hate speech, defamation, national security >>>>>>> restrictions, etc. >>>>>>> >>>>>>> However - there's a clear and well developed test for restrictions on >>>>>>> freedom of expression that's built right into the ICCPR, and which >>>>>>> applies equally to all restrictions, namely that they should be: (1) >>>>>>> provided by Law (which includes a requirement for clarity and >>>>>>> transparency), (2) fulfill a legitimate purpose, and (3) be necessary >>>>>>> and proportionate to the achievement of that goal. If we establish >>>>>>> that domain names qualify as speech under Article 19 (which, according >>>>>>> to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v. >>>>>>> Canada, is a fairly sure interpretation), then understanding the >>>>>>> applicability of Article 19 just means understanding that three part >>>>>>> test. >>>>>>> >>>>>>> If you want more info, I'd recommend this briefing note as a useful >>>>>>> (and concise!) introduction to restrictions on freedom of expression >>>>>>> under Article 19: >>>>>>> >>>>>>> http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-briefingno… >>>>>>> >>>>>>> Or if you want to go into a little more depth, you can check out this >>>>>>> one: >>>>>>> http://www.law-democracy.org/live/wp-content/uploads/2012/08/Paper-on-Restr… >>>>>>> >>>>>>> Unfortunately - neither is specifically about domain names, but the >>>>>>> discussion is basically analogous to how we understand other kinds of >>>>>>> restrictions and protections. >>>>>>> >>>>>>> On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA) >>>>>>> <migraham(a)expedia.com> wrote: >>>>>>>> Michael: >>>>>>>> >>>>>>>> Where can I find a discussion how Article 19 and similar "Freedom of >>>>>>>> Expression" requirements relate to or impact the registration of domain >>>>>>>> names? >>>>>>>> >>>>>>>> >>>>>>>> Michael R. >>>>>>>> >>>>>>>> Article 19. >>>>>>>> Everyone has the right to freedom of opinion and expression; this >>>>>>>> right includes freedom to hold opinions without interference and to seek, >>>>>>>> receive and impart information and ideas through any media and regardless of >>>>>>>> frontiers. >>>>>>>> >>>>>>>> -----Original Message----- >>>>>>>> From: gnso-rpm-wg-bounces(a)icann.org >>>>>>>> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas >>>>>>>> Sent: Thursday, April 06, 2017 5:53 AM >>>>>>>> To: J. Scott Evans <jsevans(a)adobe.com> >>>>>>>> Cc: gnso-rpm-wg(a)icann.org >>>>>>>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the >>>>>>>> Working Group call held earlier today >>>>>>>> >>>>>>>> Once again - I have to jump in. Freedom of expression is very much a >>>>>>>> universal concept: >>>>>>>> >>>>>>>> http://www.un.org/en/universal-declaration-human-rights/ >>>>>>>> http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx >>>>>>>> >>>>>>>> That's why we call them "human" rights. Not "American" rights. >>>>>>>> >>>>>>>> >>>>>>>> On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg >>>>>>>> <gnso-rpm-wg(a)icann.org> wrote: >>>>>>>>> The law is clear: an exact match isn't free speech. It is trademark >>>>>>>>> infringement. A domain that coveys a message (e.g., hotels suck.com) is free >>>>>>>>> speech and protected accordingly. Also, "free speech" is a US constitutional >>>>>>>>> concept adopted by some countries, but it is not a universal legal concept. >>>>>>>>> Perhaps universal free speech is aspirational, but it is not reality. >>>>>>>>> >>>>>>>>> Sent from my iPhone >>>>>>>>> >>>>>>>>>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann(a)leap.com> wrote: >>>>>>>>>> >>>>>>>>>> I'm not sure where J. Scott is getting his "facts", but my company >>>>>>>>>> doesn't "arbitrage" nor has it registered *any* new gTLD domain >>>>>>>>>> names >>>>>>>>>> (and I have no desire for any), nor is it a "bad actor." If you have >>>>>>>>>> proof that my company is a "bad actor", put it forward, rather than >>>>>>>>>> sling unsupported innuendo. >>>>>>>>>> >>>>>>>>>> The whole point is that the "barriers" are put forth as *required* >>>>>>>>>> to >>>>>>>>>> deal with so-called "bad actors", but are instead used to advantage >>>>>>>>>> certain groups, far beyond the "damage" that is claimed to be caused >>>>>>>>>> by the "bad actors." >>>>>>>>>> >>>>>>>>>> I don't want to delve into politics, but some might see parallels to >>>>>>>>>> certain government measures in some countries, where a "problem" is >>>>>>>>>> claimed, but a Draconian solution is applied to deal with it. >>>>>>>>>> >>>>>>>>>> When it comes to the sunrise periods for new gTLDs, the "problem" is >>>>>>>>>> claimed to be cybersquatting, but instead of relying on curative >>>>>>>>>> rights, the Sunrise policy went too far and gave too many advantages >>>>>>>>>> to TM holders, essentially creating an unlevel playing field between >>>>>>>>>> *good actors* and TM holders. >>>>>>>>>> >>>>>>>>>> Free speech means *no prior restraints* (with very rare exceptions), >>>>>>>>>> but harsh penalties for unlawful speech (curative rights). >>>>>>>>>> >>>>>>>>>> >>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. >>>>>>>>>> >>>>>>>>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811dc6e8437 >>>>>>>>>> >>>>>>>>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63 >>>>>>>>>> >>>>>>>>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g%2FOWfC >>>>>>>>>> H7s%3D&reserved=0 >>>>>>>>>> >>>>>>>>>> Sincerely, >>>>>>>>>> >>>>>>>>>> George Kirikos >>>>>>>>>> 416-588-0269 >>>>>>>>>> >>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l >>>>>>>>>> >>>>>>>>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%7Cfa7b1 >>>>>>>>>> >>>>>>>>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata=6BJPNx >>>>>>>>>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0 >>>>>>>>>> >>>>>>>>>> >>>>>>>>>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans <jsevans(a)adobe.com> >>>>>>>>>>> wrote: >>>>>>>>>>> The same logic applies to you and other domaines, cybersquatters, >>>>>>>>>>> speculators and small businesses. The fact that you want to arbitrage in >>>>>>>>>>> terms that are also trademarks is your choice and you have to deal with the >>>>>>>>>>> barriers put in place to deal with the bad actors. >>>>>>>>>>> >>>>>>>>>>> Sent from my iPhone >>>>>>>>>>> >>>>>>>>>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann(a)leap.com> wrote: >>>>>>>>>>>> >>>>>>>>>>>> Hi folks, >>>>>>>>>>>> >>>>>>>>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian >>>>>>>>>>>>> <brian.beckham(a)wipo.int> wrote: >>>>>>>>>>>>> Finally, since the chart references the EFF letter, it is worth >>>>>>>>>>>>> mentioning here that the fact that a trademark owner may pay >>>>>>>>>>>>> (sometimes extremely high >>>>>>>>>>>>> amounts) to defensively register a domain name exactly matching >>>>>>>>>>>>> its trademark in a Sunrise process (and thereby taking it “off >>>>>>>>>>>>> the >>>>>>>>>>>>> market”) does not prevent free expression, which may be >>>>>>>>>>>>> undertaken >>>>>>>>>>>>> in countless other ways. The number of terms that may be >>>>>>>>>>>>> appended >>>>>>>>>>>>> to a trademark (not to mention typos) to engage in all manner of >>>>>>>>>>>>> speech – fair or otherwise – is, practically-speaking, all but >>>>>>>>>>>>> limitless. >>>>>>>>>>>> >>>>>>>>>>>> By that "logic", the number of terms that may be appended to a >>>>>>>>>>>> common dictionary word (not to mention typos) to create a >>>>>>>>>>>> trademarkable brand is, practically-speaking, all but limitless. >>>>>>>>>>>> :-) >>>>>>>>>>>> >>>>>>>>>>>> In other words, those creating a new brand/trademark certainly had >>>>>>>>>>>> the opportunity to create a longer (and thus inferior) alternative >>>>>>>>>>>> to a commonly used dictionary word or other common term. The fact >>>>>>>>>>>> that they decided instead to choose a common term that is widely >>>>>>>>>>>> used by the public shouldn't give them any priority access in a >>>>>>>>>>>> launch of a new gTLD. >>>>>>>>>>>> >>>>>>>>>>>> "I created a problem for myself, and I want ICANN to fix it" is >>>>>>>>>>>> the >>>>>>>>>>>> essence of the sunrise argument for commonly used terms, like >>>>>>>>>>>> dictionary words and short acronyms. >>>>>>>>>>>> >>>>>>>>>>>> Sincerely, >>>>>>>>>>>> >>>>>>>>>>>> George Kirikos >>>>>>>>>>>> 416-588-0269 >>>>>>>>>>>> >>>>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww >>>>>>>>>>>> >>>>>>>>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cf >>>>>>>>>>>> >>>>>>>>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata= >>>>>>>>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 >>>>>>>>>>>> _______________________________________________ >>>>>>>>>>>> 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%7C2b7 >>>>>>>>>>>> >>>>>>>>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C >>>>>>>>>>>> >>>>>>>>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkF >>>>>>>>>>>> D%2Fj6BAXDjiI%3D&reserved=0 >>>>>>>>>> _______________________________________________ >>>>>>>>>> gnso-rpm-wg mailing list >>>>>>>>>> gnso-rpm-wg(a)icann.org >>>>>>>>>> >>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.i >>>>>>>>>> >>>>>>>>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C811dc6e >>>>>>>>>> >>>>>>>>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0% >>>>>>>>>> >>>>>>>>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZQh1s99f >>>>>>>>>> s%3D&reserved=0 >>>>>>>>> _______________________________________________ >>>>>>>>> gnso-rpm-wg mailing list >>>>>>>>> gnso-rpm-wg(a)icann.org >>>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>>>>> _______________________________________________ >>>>>>>> gnso-rpm-wg mailing list >>>>>>>> gnso-rpm-wg(a)icann.org >>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>>>> _______________________________________________ >>>>>>> gnso-rpm-wg mailing list >>>>>>> gnso-rpm-wg(a)icann.org >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>>> >>>>>> >>>>> >>>> >>>> >>>> _______________________________________________ >>>> gnso-rpm-wg mailing list >>>> gnso-rpm-wg(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>> _______________________________________________ >>> gnso-rpm-wg mailing list >>> gnso-rpm-wg(a)icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> >> ________________________________ >> >> Confidentiality Notice: >> This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. >> >> ________________________________ >> >> ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

6 7

Fwd: Action Items, Slides and Notes from the Working Group call held earlier today
by Greg Shatan April 10, 2017

April 10, 2017

Forwarding my email to the group, since I hit "reply" rather than "reply to all" (the one time when hitting "reply to all" is preferable!). Greg ---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Mon, Apr 10, 2017 at 1:39 AM Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today To: Rebecca Tushnet <Rebecca.Tushnet(a)law.georgetown.edu> Rebecca, Thanks for your email below. After reading it, I have a few questions. What is your logic in stating that you "see clear free speech issues that can arise from an attempt to register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, nyc.x and the like."? First, what is the "clear free speech" issue you see? This strikes me as a conclusory allegation. Do you see the same "free speech issue" for each string? If so, why Second, what is the protectable speech that you see being restricted? Do you think that the analysis is the same for each of these strings? If so, why? Third, do you really mean that any attempt to register one of these strings as a domain name raises a free speech issue? Or did you mean something else? If it's the former, should these be blocked from registration as domain names by any party, since "free speech issues can arise from an attempt to" register one of these names? Fourth, Kiran asked you "What do you mean by "blocked"?" You didn't answer, so I'll reiterate the question here. What do you mean by blocked? Fifth, do you consider "nyc" and "abc" to be "dictionary terms"? If so, why? Thanks for your responses. Greg *Greg Shatan *C: 917-816-6428 <(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <(646)%20845-9428> gregshatanipc(a)gmail.com On Sun, Apr 9, 2017 at 1:07 PM, Rebecca Tushnet <Rebecca.Tushnet@law. georgetown.edu> wrote: > Following up on my post from yesterday, let's make this more specific: > I see clear free speech issues that can arise from an attempt to > register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, > nyc.x and the like. Those along with forex, hotel, one, london, and > abc, are the top ten downloads from the TMCH. Of course, as Michael > K. indicates, we'd know more about how many dictionary terms are being > blocked if there were more transparency, but what we do know right now > should be concerning. > Rebecca Tushnet > Georgetown Law > 703 593 6759 > > > On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc(a)gmail.com> > wrote: > > My responses are in-line. > > > > G > > reg > > > > > > On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas < > mkaranicolas(a)gmail.com> > > wrote: > >> > >> Hi, > >> > >> I think that Michael Graham brings up a salient point in terms of > falling > >> too far down the rabbit hole on background matters, but I should > address a > >> few issues in response to questions that were directly asked of me. > >> > >> First off, while Greg is correct to point out that the UDHR is not > >> formally legally binding as a UNGA resolution, it is (quite literally) > the > >> textbook example of customary international law. I realize that can be a > >> fuzzy concept to rely on, but luckily I don't have to rely on it > because the > >> freedom of expression protections in the UDHR are substantially > identical to > >> those found in the ICCPR, which IS a formally binding treaty. > > > > > > Binding on states. Of course, ICANN is not a state. Luckily, we have > the > > new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), > which > > states that one of ICANN's eight Core Values (which must be subject to a > > balancing analysis involving all Core Values). is "within the scope of > its > > Mission and other Core Values, respecting internationally recognized > human > > rights as required by applicable law." The Bylaw specifically notes that > > "This Core Value does not create, and shall not be interpreted to create, > > any obligation on ICANN outside its Mission, or beyond obligations found > in > > applicable law." As such, ICANN's obligations do not go beyond what > would > > otherwise be required by applicable law. There's been a great deal of > > discussion of this in CCWG-Accountability WS1 and in the Human Rights > > Subgroup of WS2, so I won't go further into the concepts here, which > would > > be a rabbit hole down a rabbit hole from the viewpoint of this group. > >> > >> > >> Also, while I appreciate Greg's caution against "cherrypicking" by > viewing > >> Article 19 in isolation, in this context that argument is just a > >> smokescreen. > > > > > > Concerns about cherrypicking are in no way a "smokescreen" -- unless the > > reference is to the saying "where there's smoke, there's fire." John > > Levine's blog nicely expressed a number of concerns about such > > cherrypicking, especially for what he calls the "fashionable human > rights," > > so I won't repeat them here. It is important to keep in mind, as Michael > > notes, that "human rights are fundamentally about balance," so perhaps we > > are not so far apart, as "balance" and "cherrypicking" are mutually > > exclusive concepts. > > > > Of course the UDHR and ICCPR need to be viewed holistically - that > > understanding in no way supports an argument that domains are not speech. > > > > I'm puzzled by the second part of this sentence. I think this point is > > unrelated to the issue of whether or not domain names are speech, so it > > neither supports nor negates any argument on that topic. > > > > There's no conflict between believing in personal privacy as protected by > > the ICCPR (as I do), and believing in the need to combat hate speech as > > spelled out in the ICCPR (as I do), and believing in freedom of > expression. > > Human rights are fundamentally about balance (more on that in a second). > > > > There are certainly conflicts (e.g., between combating hate speech and > > supporting free speech); the issue is how to balance these countervailing > > issues to resolve these conflicts. > >> > >> > >> With regard to Ballantyne, Davidson & McIntyre, I probably should have > >> been more specific in my original post. Of course, as Greg notes, the > case > >> is not specifically about domain names - which would be a pretty niche > area > >> for the Human Rights Committee to dig into. But the decision contains > the > >> clearest statement of the extent of what constitutes "speech" under the > >> ICCPR, namely that Article 19: "must be interpreted as encompassing > every > >> form of subjective ideas and opinions capable of transmission to > others". > >> It's an incredibly broad formulation - to cover virtually anything that > >> conveys meaning. I, personally, can't see an interpretation of that that > >> doesn't include domain names. > > > > > > This is not really that broad a formulation -- it dovetails nicely with > the > > concept of "expressive speech" under US law (as in the excerpt from > Gibson). > > Furthermore, there is a considerable difference between the speech > > constituting "subjective ideas and opinions" protected in Ballantyne and > the > > "incredibly broad formulation" that would elevate "virtually anything > that > > conveys meaning." "Subjective ideas and opinions" in no way embraces > domain > > names per se; whether and to what extent it embraces domain names is > > certainly not a question answered in Ballantyne. > >> > >> > >> With regard to Gibson v. Texas - I don't want to dig too deeply into > this > >> because, honestly, US law is not my specialisation. But I think that > part of > >> the disconnect between our positions is due to a particular aspect of > the > >> American understanding of free speech, that's sort of different to how > it's > >> understood virtually everywhere else. Under most systems, including the > >> international example I just cited, virtually everything is classed as > >> "speech", and then there's a balancing as to whether particular > restrictions > >> are justified. But because of the absolutist way the US Constitution is > >> phrased ("Congress shall make no law"), the Courts have had to go > through > >> some unusual legal gymnastics to find that speech that they feel > justified > >> restricting isn't actually speech. > > > > > > Simply reading the excerpt from Gibson v. Texas in my prior email shows > that > > this "speech/not speech" analysis is incorrect. Gibson, and the cases > cited > > in it, distinguish between protected speech and speech that that is "not > to > > be protected." Specifically, Gibson mentions that "courts have held that > > domain names that use trademarks to misidentify the source of a product > are > > outside the reach of the First Amendment" and also cites a line of cases > > where "the domain name was actually held not to be protected speech > because > > it was not expressive, not because it was misleading." More broadly, the > > idea that the US approach to free speech is anomalous is incorrect. Of > > course, free speech regimes vary broadly throughout the world -- so > there's > > no such thing as a single "understanding of free speech... virtually > > everywhere else" aside from the US. Unfortunately, there are many > places in > > the world where there is no understanding of free speech at all.) If > the US > > approach to free speech tends to be different, it is in a greater > tolerance > > for controversial and offensive speech (what John Levine calls "the > > absolutist U.S. first amendment approach"). This is why US law doesn't > find > > it so easy to restrict alleged "hate speech" as "virtually everywhere > else", > > and also why I can't be so comfortable in finding "no conflict" between > free > > speech and restricting hate speech. (And I say this as a member of a > group > > that is finding itself increasingly on the wrong end of both offensive > > speech and hate speech.) > >> > >> > >> So, without trying to belabour these issues, my point in the above is > not > >> to try and invalidate the trademark protection system - indeed, Greg's > quite > >> right to point out that trademarks are also speech. My point here is > simply > >> to try and demonstrate that there are free speech issues at play. > > > > > > It's clear that this is false as a general statement, unless this is > meant > > as a statement that could possibly true in a large enough sample, like > > "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one > > sees clear distinctions being drawn being "subjective ideas and opinions" > > and speech that is "not expressive" or "inherently misleading." This is > > probably a good time to note that the UDHR and the ICCPR both refer to > > "freedom of expression" and not to "free speech." So, it would be more > > proper to discuss whether "expressive speech" is at issue, not whether > the > > over-broad "virtually anything that conveys meaning" is at issue, before > we > > even get to the question of whether free speech issues are at play, to > what > > extent, and how that might affect any discussion that is relevant to this > > Working Group. > > > >> > >> To me, that's not a controversial point - and if we can agree on that, > > > > > > I don't think we can agree on that, and certainly not as an assumed > > agreement from which one can proceed blithely on. Rather, I think that > is > > an elemental aspect of the discussion, and as noted above, at best > > "controversial" and possibly sometimes true, and at worst false (at > least as > > a general statement). > > > > As an aside, it's worth noting what Article 19 of the ICCPR actually > > protects: "the right to hold opinions without interference" and "the > right > > to freedom of expression; this right shall include freedom to seek, > receive > > and impart information and ideas of all kinds, regardless of frontiers, > > either orally, in writing or in print, in the form of art, or through any > > other media of his choice." I admit to struggling to find instances > where > > the right to hold opinions or to express oneself freely is truly being > > violated in this context -- especially in a world where holding or > > expressing an opinion can come under threat of oppression, suppression, > > violence, imprisonment or worse. As someone who strongly supports First > > Amendment rights and who has worked on litigation defending First > Amendment > > freedoms, I wonder whether this discussion trivializes free speech > concerns > > rather than promoting them. That is not to dismiss the possibility of > free > > speech concerns here, but just to say that, to the extent there is a > viable > > point here, it pales in comparison to the significant freedom of > expression > > concerns elsewhere (including elsewhere on the Internet, where access to > > websites with undesirable opinions or expression, or even to the > Internet as > > a whole, is under escalating attack). > > > > > >> > >> then that is relevant to the transparency question, since in my mind it > >> bolsters arguments for why openness in the system is important. > > > > > > I don't get the logical leaps here, from the possibility of a free speech > > issue, to the claimed relevance to the transparency question, to the even > > more attenuated idea that this bolsters arguments regarding changing > access > > rules for the TMCH. In other words, I don't really think that any of > this > > changes the discussion on TMCH database access, nor do I really think it > is > > relevant to any of the work we are undertaking right now. That is not to > > say that this is an uninteresting discussion (or else I would not have > > engaged in it), just that it is a rabbit hole in relation to our work. > >> > >> > >> Best, > >> > >> Michael > >> > >> On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc(a)gmail.com> > >> wrote: > >>> > >>> It's important to keep in mind that the rights set forth in the UDHR > are > >>> interrelated and interdependent, so understanding the applicability of > any > >>> one Article also requires understanding the applicability of the other > >>> rights in the UDHR, including some which may be countervailing to > others. > >>> Looking at Article 19 in isolation is "cherrypicking." A recent > CircleID > >>> article by John Levine is quite enlightening on this very point: > >>> > >>> http://www.circleid.com/posts/20170401_human_rights_and_regu > lar_internet_users/ > >>> > >>> The article is short, but for those who don't get there, this quote > goes > >>> to the heart of the matter: "it devalues the whole topic of human > rights to > >>> pay attention only to a few fashionable rights, while ignoring ones > that are > >>> at least as important in people's daily lives." > >>> > >>> (It should also be noted that the UDHR, while adopted by the United > >>> Nations and widely used, does not constitute some form of "universal > law" > >>> nor is it universally accepted.) > >>> > >>> The case mentioned, Gibson v. Texas, has portions that are directly > >>> applicable to the discussion at hand. However, the Gibson decision > actually > >>> distinguishes cases involving trademarks from the situation in that > case. > >>> As a matter of fact, the Gibson case tells us that there are at least > two > >>> types of domain names that do not constitute speech protected by the > First > >>> Amendment: domain names that infringe trademarks, and domain names > that do > >>> not constitute "expressive speech." > >>> > >>> (In other words, there can be no "freedom of expression" issue when the > >>> speech is not expressive.) > >>> > >>> Before getting to an excerpt from the case, it's important to note that > >>> the court did not find that domain names are speech, much less find > that > >>> domain names are speech protected by the First Amendment. The court > made no > >>> findings about all domain names. Rather, the court assumed, for the > purpose > >>> of considering a motion to dismiss, that the domain name in question > >>> (texasworkerscomplaw.com) constituted commercial speech. It's also > >>> important to note that the case involved the Constitutionality of a > law that > >>> broadly prohibited the use of the terms "Texas" and "workers comp," > and not > >>> a trademark infringement matter. > >>> > >>> The excerpt is quite instructive: > >>> > >>> > >>> In order for speech to fall outside of the First Amendment’s > protection, > >>> the speech must either be “inherently likely to deceive,” or “the > record > >>> [must] indicate[] that a particular form or method of advertising has > in > >>> fact been deceptive.” R.M.J., 455 U.S. at 202. > >>> > >>> > >>> Appellees primarily argue that the Texas statute is constitutional > >>> because Gibson’s domain name amounts to inherently misleading speech. > In > >>> support of this proposition, they cite to a series of cases in which > courts > >>> have held that domain names that use trademarks to misidentify the > source of > >>> a product are outside the reach of the First Amendment. The case law > cited > >>> by Appellees, however, is unique to the field of trademark > infringement, > >>> see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and > does > >>> not necessarily extend to a case such as this one, where Texas is > >>> prohibiting Gibson from using words that are otherwise in the public > >>> domain.[1] Cases involving trademark infringement involve inherently > >>> deceptive speech because they contain a significant risk that an > infringing > >>> party will freeload on the goodwill that has been created by the > original > >>> trademark. See Friedman, 440 U.S. at 11-16. No such risk is present > here. > >>> Texas has made no showing that its own talents and energy contributed > to the > >>> creation of any goodwill in the name “texasworkerscomplaw.com.” See San > >>> Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, > 533-34 > >>> (1987). Instead the regulation at issue is forward-thinking; intended > to > >>> prohibit confusion for individuals seeking information from the > government > >>> agency. It is not retrospective in the same way as most trademark > >>> litigation, which is generally intended to preserve the reputation > that has > >>> been built upon a trade name. See Friedman, 440 U.S. at 11-16. > Accordingly, > >>> the case law cited by Appellees is inapposite. > >>> > >>> > >>> ________________________________ > >>> > >>> [1] In most of the cases cited by Appellees the domain name was > actually > >>> held not to be protected speech because it was not expressive, not > because > >>> it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. > Bucci, No. > >>> 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); > Morrison & > >>> Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews > for > >>> Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in > contrast, > >>> Gibson’s domain name is expressive because it does more than simply > mimic > >>> the state agency’s website or identify a source of Texas Workers’ > >>> Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The > domain > >>> name is intended to direct visitors to a forum for discussing workers’ > >>> compensation laws and their potential reform, as well as to convey to > >>> visitors the message of Gibson’s website as a whole. Accordingly, in > the > >>> context of this case, the domain name is “‘sufficiently imbued with the > >>> elements of communication’” to place it in the realm of expressive > speech. > >>> Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. > >>> 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)). > >>> > >>> Greg Shatan > >>> > >>> > >>> Greg Shatan > >>> C: 917-816-6428 <(917)%20816-6428> > >>> S: gsshatan > >>> Phone-to-Skype: 646-845-9428 <(646)%20845-9428> > >>> gregshatanipc(a)gmail.com > >>> > >>> > >>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas > >>> <mkaranicolas(a)gmail.com> wrote: > >>>> > >>>> It's an interesting question. Different national courts have handled > >>>> the issue in different ways. In the US, for example, the Fifth Circuit > >>>> Court of Appeals found in Gibson v. Texas that domain names are > >>>> protected as speech under the 1st amendment. But freedom of expression > >>>> in the US context tends to be understood differently than elsewhere, > >>>> since the way it's protected under the US constitution is a bit > >>>> different from how most constitutions frame their equivalent > >>>> protections. > >>>> > >>>> That said - when you're asking about Article 19, the discussion comes > >>>> at the international level where, as far as I know, there's no single > >>>> authoritative treatment to point to. Generally, discussions of Article > >>>> 19 by standard setting bodies tend to focus on the sharper and more > >>>> controversial issues: hate speech, defamation, national security > >>>> restrictions, etc. > >>>> > >>>> However - there's a clear and well developed test for restrictions on > >>>> freedom of expression that's built right into the ICCPR, and which > >>>> applies equally to all restrictions, namely that they should be: (1) > >>>> provided by Law (which includes a requirement for clarity and > >>>> transparency), (2) fulfill a legitimate purpose, and (3) be necessary > >>>> and proportionate to the achievement of that goal. If we establish > >>>> that domain names qualify as speech under Article 19 (which, according > >>>> to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v. > >>>> Canada, is a fairly sure interpretation), then understanding the > >>>> applicability of Article 19 just means understanding that three part > >>>> test. > >>>> > >>>> If you want more info, I'd recommend this briefing note as a useful > >>>> (and concise!) introduction to restrictions on freedom of expression > >>>> under Article 19: > >>>> > >>>> http://www.law-democracy.org/live/wp-content/uploads/2015/02 > /foe-briefingnotes-2.pdf > >>>> > >>>> Or if you want to go into a little more depth, you can check out this > >>>> one: > >>>> http://www.law-democracy.org/live/wp-content/uploads/2012/08 > /Paper-on-Restrictions.10.03.22.rev_.pdf > >>>> > >>>> Unfortunately - neither is specifically about domain names, but the > >>>> discussion is basically analogous to how we understand other kinds of > >>>> restrictions and protections. > >>>> > >>>> On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA) > >>>> <migraham(a)expedia.com> wrote: > >>>> > Michael: > >>>> > > >>>> > Where can I find a discussion how Article 19 and similar "Freedom of > >>>> > Expression" requirements relate to or impact the registration of > domain > >>>> > names? > >>>> > > >>>> > > >>>> > Michael R. > >>>> > > >>>> > Article 19. > >>>> > Everyone has the right to freedom of opinion and expression; this > >>>> > right includes freedom to hold opinions without interference and to > seek, > >>>> > receive and impart information and ideas through any media and > regardless of > >>>> > frontiers. > >>>> > > >>>> > -----Original Message----- > >>>> > From: gnso-rpm-wg-bounces(a)icann.org > >>>> > [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael > Karanicolas > >>>> > Sent: Thursday, April 06, 2017 5:53 AM > >>>> > To: J. Scott Evans <jsevans(a)adobe.com> > >>>> > Cc: gnso-rpm-wg(a)icann.org > >>>> > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the > >>>> > Working Group call held earlier today > >>>> > > >>>> > Once again - I have to jump in. Freedom of expression is very much a > >>>> > universal concept: > >>>> > > >>>> > http://www.un.org/en/universal-declaration-human-rights/ > >>>> > http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx > >>>> > > >>>> > That's why we call them "human" rights. Not "American" rights. > >>>> > > >>>> > > >>>> > On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg > >>>> > <gnso-rpm-wg(a)icann.org> wrote: > >>>> >> The law is clear: an exact match isn't free speech. It is trademark > >>>> >> infringement. A domain that coveys a message (e.g., hotels > suck.com) is free > >>>> >> speech and protected accordingly. Also, "free speech" is a US > constitutional > >>>> >> concept adopted by some countries, but it is not a universal legal > concept. > >>>> >> Perhaps universal free speech is aspirational, but it is not > reality. > >>>> >> > >>>> >> Sent from my iPhone > >>>> >> > >>>> >>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann(a)leap.com> > wrote: > >>>> >>> > >>>> >>> I'm not sure where J. Scott is getting his "facts", but my company > >>>> >>> doesn't "arbitrage" nor has it registered *any* new gTLD domain > >>>> >>> names > >>>> >>> (and I have no desire for any), nor is it a "bad actor." If you > have > >>>> >>> proof that my company is a "bad actor", put it forward, rather > than > >>>> >>> sling unsupported innuendo. > >>>> >>> > >>>> >>> The whole point is that the "barriers" are put forth as *required* > >>>> >>> to > >>>> >>> deal with so-called "bad actors", but are instead used to > advantage > >>>> >>> certain groups, far beyond the "damage" that is claimed to be > caused > >>>> >>> by the "bad actors." > >>>> >>> > >>>> >>> I don't want to delve into politics, but some might see parallels > to > >>>> >>> certain government measures in some countries, where a "problem" > is > >>>> >>> claimed, but a Draconian solution is applied to deal with it. > >>>> >>> > >>>> >>> When it comes to the sunrise periods for new gTLDs, the "problem" > is > >>>> >>> claimed to be cybersquatting, but instead of relying on curative > >>>> >>> rights, the Sunrise policy went too far and gave too many > advantages > >>>> >>> to TM holders, essentially creating an unlevel playing field > between > >>>> >>> *good actors* and TM holders. > >>>> >>> > >>>> >>> Free speech means *no prior restraints* (with very rare > exceptions), > >>>> >>> but harsh penalties for unlawful speech (curative rights). > >>>> >>> > >>>> >>> > >>>> >>> https://na01.safelinks.protection.outlook.com/?url=https%3A% > 2F%2Fwww. > >>>> >>> > >>>> >>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C81 > 1dc6e8437 > >>>> >>> > >>>> >>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1% > 7C0%7C0%7C63 > >>>> >>> > >>>> >>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ > 4g%2FOWfC > >>>> >>> H7s%3D&reserved=0 > >>>> >>> > >>>> >>> Sincerely, > >>>> >>> > >>>> >>> George Kirikos > >>>> >>> 416-588-0269 <(416)%20588-0269> > >>>> >>> > >>>> >>> https://na01.safelinks.protection.outlook.com/?url=http%3A% > 2F%2Fwww.l > >>>> >>> > >>>> >>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d3 > 0%7Cfa7b1 > >>>> >>> > >>>> >>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sda > ta=6BJPNx > >>>> >>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0 > >>>> >>> > >>>> >>> > >>>> >>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans < > jsevans(a)adobe.com> > >>>> >>>> wrote: > >>>> >>>> The same logic applies to you and other domaines, cybersquatters, > >>>> >>>> speculators and small businesses. The fact that you want to > arbitrage in > >>>> >>>> terms that are also trademarks is your choice and you have to > deal with the > >>>> >>>> barriers put in place to deal with the bad actors. > >>>> >>>> > >>>> >>>> Sent from my iPhone > >>>> >>>> > >>>> >>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann(a)leap.com> > wrote: > >>>> >>>>> > >>>> >>>>> Hi folks, > >>>> >>>>> > >>>> >>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian > >>>> >>>>>> <brian.beckham(a)wipo.int> wrote: > >>>> >>>>>> Finally, since the chart references the EFF letter, it is worth > >>>> >>>>>> mentioning here that the fact that a trademark owner may pay > >>>> >>>>>> (sometimes extremely high > >>>> >>>>>> amounts) to defensively register a domain name exactly matching > >>>> >>>>>> its trademark in a Sunrise process (and thereby taking it “off > >>>> >>>>>> the > >>>> >>>>>> market”) does not prevent free expression, which may be > >>>> >>>>>> undertaken > >>>> >>>>>> in countless other ways. The number of terms that may be > >>>> >>>>>> appended > >>>> >>>>>> to a trademark (not to mention typos) to engage in all manner > of > >>>> >>>>>> speech – fair or otherwise – is, practically-speaking, all but > >>>> >>>>>> limitless. > >>>> >>>>> > >>>> >>>>> By that "logic", the number of terms that may be appended to a > >>>> >>>>> common dictionary word (not to mention typos) to create a > >>>> >>>>> trademarkable brand is, practically-speaking, all but limitless. > >>>> >>>>> :-) > >>>> >>>>> > >>>> >>>>> In other words, those creating a new brand/trademark certainly > had > >>>> >>>>> the opportunity to create a longer (and thus inferior) > alternative > >>>> >>>>> to a commonly used dictionary word or other common term. The > fact > >>>> >>>>> that they decided instead to choose a common term that is widely > >>>> >>>>> used by the public shouldn't give them any priority access in a > >>>> >>>>> launch of a new gTLD. > >>>> >>>>> > >>>> >>>>> "I created a problem for myself, and I want ICANN to fix it" is > >>>> >>>>> the > >>>> >>>>> essence of the sunrise argument for commonly used terms, like > >>>> >>>>> dictionary words and short acronyms. > >>>> >>>>> > >>>> >>>>> Sincerely, > >>>> >>>>> > >>>> >>>>> George Kirikos > >>>> >>>>> 416-588-0269 > >>>> >>>>> > >>>> >>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A% > 2F%2Fwww > >>>> >>>>> > >>>> >>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46 > e63%7Cf > >>>> >>>>> > >>>> >>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418 > &sdata= > >>>> >>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 > >>>> >>>>> _______________________________________________ > >>>> >>>>> 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%7C2b7 > >>>> >>>>> > >>>> >>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178de > cee1%7C > >>>> >>>>> > >>>> >>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B > 2kWcBkF > >>>> >>>>> D%2Fj6BAXDjiI%3D&reserved=0 > >>>> >>> _______________________________________________ > >>>> >>> gnso-rpm-wg mailing list > >>>> >>> gnso-rpm-wg(a)icann.org > >>>> >>> > >>>> >>> https://na01.safelinks.protection.outlook.com/?url=https%3A% > 2F%2Fmm.i > >>>> >>> > >>>> >>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C% > 7C811dc6e > >>>> >>> > >>>> >>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1 > %7C0%7C0% > >>>> >>> > >>>> >>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhI > pZQh1s99f > >>>> >>> s%3D&reserved=0 > >>>> >> _______________________________________________ > >>>> >> gnso-rpm-wg mailing list > >>>> >> gnso-rpm-wg(a)icann.org > >>>> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > >>>> > _______________________________________________ > >>>> > gnso-rpm-wg mailing list > >>>> > gnso-rpm-wg(a)icann.org > >>>> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > >>>> _______________________________________________ > >>>> gnso-rpm-wg mailing list > >>>> gnso-rpm-wg(a)icann.org > >>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > >>> > >>> > >> > > > > > > _______________________________________________ > > gnso-rpm-wg mailing list > > gnso-rpm-wg(a)icann.org > > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >

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Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
by Nahitchevansky, Georges April 10, 2017

April 10, 2017

It would help fairly easily. First, registration in the TMCH does not mean in and of itself there is an abuse. Second, the whole straw man argument with no evidence is that brand owners are somehow overreaching and grabbing all common word domain names in the new extensions. Clearly, if brand owners are not the majority owners of common word domain names in the new extensions, then the whole house of cards argument that brand owners are taking advantage of the system falls apart. Third, you could easily tell in many instances whether a sunrise registration occurred. We know all of the sunrise dates, and whois for the most part show a date of creation. So if you wanted to cross reference you could easily see if a name was registered during a sunrise period. Fourth, what you will likely find from all this is that most common word domain in the new extensions are not registered to brand owners. If it turns out a majority are registered by domainers or speculators would we then go down the path of figuring out how that happened. Original Message ‎ From: Rebecca Tushnet Sent: Sunday, April 9, 2017 4:38 PM To: Nahitchevansky, Georges Cc: Paul Keating; Rebecca Tushnet; gnso-rpm-wg(a)icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today How would this exercise indicate whether such registrations occurred with a TMCH claim or in spite of one, or neither? And aren't the top ten in the audit report also valuable? Sent from my phone. Apologies for terseness/typos. > On Apr 9, 2017, at 4:03 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com> wrote: > > Again, I have to ask where is the evidence of widespread abuse. It seems like the whole argument is on the basis of some strawman argument that brand owners are using the TMCH to take common words out of circulation. I have yet to see anything that even remotely proves or suggests this in fact has occurred. Moreover, the idea that you have to see the TMCH data is a bit of a fishing expedition and will not establish that widespread abuse occurred (e.g., if Delta was registered by Delta Airlines in the TMCH it does in and of itself suggest an abuse of the system). What seems to be happening is that folks are positing a position with little to no evidence, then saying they need the data and making everybody spends gobs of time on issues that have previously been debated, esoteric concepts of human rights, natural justice, free speech and god knows what else. ‎Perhaps, instead of throwing out arguments there should be an effort to gather some real evidence for discussion. If we all decide to continue down this path then perhaps one simple idea would be to take a list of common words that could be perceived as being valuable such as business, music, car, travel, sex, money, ski, football, food, boat, truck, website, online etc and cross reference these words with the new gTld registrations to get some sense of who owns these domain names. Once there is some real data, then we can evaluate who owns most of these ( domainers, brand owners, speculators, industry groups etc.). This would not be a difficult exercise to do. Instead of multiple email chains, folks could take on one or two words from a compiled list and conduct this investigation using whois. > > > > Original Message > From: Paul Keating > Sent: Sunday, April 9, 2017 3:31 PM > To: Rebecca Tushnet > Cc: gnso-rpm-wg(a)icann.org > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today > > > I see clear speech issues as well. It is not possible to formulate a position that no domain name represents an expression of speech. > > Nor is it sufficient to ignore this issue because there are other forums available to channel the desired expression. > > The goal here is not to protect the obvious but rather to protect the speech that is possible but not yet obvious. > > So this is not a rabbit hole. > The TMCH was developed based upon an assumption that it would not be abused and would not unreasonably infringe upon speech. > We must determine if abuse has occurred. > The contents of the TMCH database is very much relevant. > If we are to be denied information relevant to the database we must assume the worst. > For if the IP crowd wants us to believe - there is no problem, - it is encumbrance upon then to prove it, > Freedoms of speech is simply too important to ignore. > > For if you take away all of my rights save the freedom of speech I will quickly recover those rights lost......Jefferson. > > Sent from my iPad > >> On 9 Apr 2017, at 19:08, Rebecca Tushnet <Rebecca.Tushnet(a)law.georgetown.edu> wrote: >> >> Following up on my post from yesterday, let's make this more specific: >> I see clear free speech issues that can arise from an attempt to >> register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X, >> nyc.x and the like. Those along with forex, hotel, one, london, and >> abc, are the top ten downloads from the TMCH. Of course, as Michael >> K. indicates, we'd know more about how many dictionary terms are beingdom >> blocked if there were more transparency, but what we do know right now >> should be concerning. >> Rebecca Tushnet >> Georgetown Law >> 703 593 6759 >> >> >>> On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc(a)gmail.com> wrote: >>> My responses are in-line. >>> >>> G >>> reg >>> >>> >>> On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas <mkaranicolas(a)gmail.com> >>> wrote: >>>> >>>> Hi, >>>> >>>> I think that Michael Graham brings up a salient point in terms of falling >>>> too far down the rabbit hole on background matters, but I should address a >>>> few issues in response to questions that were directly asked of me. >>>> >>>> First off, while Greg is correct to point out that the UDHR is not >>>> formally legally binding as a UNGA resolution, it is (quite literally) the >>>> textbook example of customary international law. I realize that can be a >>>> fuzzy concept to rely on, but luckily I don't have to rely on it because the >>>> freedom of expression protections in the UDHR are substantially identical to >>>> those found in the ICCPR, which IS a formally binding treaty. >>> >>> >>> Binding on states. Of course, ICANN is not a state. Luckily, we have the >>> new human rights Core Value in the ICANN Bylaws, Section 1.2(b)(viii), which >>> states that one of ICANN's eight Core Values (which must be subject to a >>> balancing analysis involving all Core Values). is "within the scope of its >>> Mission and other Core Values, respecting internationally recognized human >>> rights as required by applicable law." The Bylaw specifically notes that >>> "This Core Value does not create, and shall not be interpreted to create, >>> any obligation on ICANN outside its Mission, or beyond obligations found in >>> applicable law." As such, ICANN's obligations do not go beyond what would >>> otherwise be required by applicable law. There's been a great deal of >>> discussion of this in CCWG-Accountability WS1 and in the Human Rights >>> Subgroup of WS2, so I won't go further into the concepts here, which would >>> be a rabbit hole down a rabbit hole from the viewpoint of this group. >>>> >>>> >>>> Also, while I appreciate Greg's caution against "cherrypicking" by viewing >>>> Article 19 in isolation, in this context that argument is just a >>>> smokescreen. >>> >>> >>> Concerns about cherrypicking are in no way a "smokescreen" -- unless the >>> reference is to the saying "where there's smoke, there's fire." John >>> Levine's blog nicely expressed a number of concerns about such >>> cherrypicking, especially for what he calls the "fashionable human rights," >>> so I won't repeat them here. It is important to keep in mind, as Michael >>> notes, that "human rights are fundamentally about balance," so perhaps we >>> are not so far apart, as "balance" and "cherrypicking" are mutually >>> exclusive concepts. >>> >>> Of course the UDHR and ICCPR need to be viewed holistically - that >>> understanding in no way supports an argument that domains are not speech. >>> >>> I'm puzzled by the second part of this sentence. I think this point is >>> unrelated to the issue of whether or not domain names are speech, so it >>> neither supports nor negates any argument on that topic. >>> >>> There's no conflict between believing in personal privacy as protected by >>> the ICCPR (as I do), and believing in the need to combat hate speech as >>> spelled out in the ICCPR (as I do), and believing in freedom of expression. >>> Human rights are fundamentally about balance (more on that in a second). >>> >>> There are certainly conflicts (e.g., between combating hate speech and >>> supporting free speech); the issue is how to balance these countervailing >>> issues to resolve these conflicts. >>>> >>>> >>>> With regard to Ballantyne, Davidson & McIntyre, I probably should have >>>> been more specific in my original post. Of course, as Greg notes, the case >>>> is not specifically about domain names - which would be a pretty niche area >>>> for the Human Rights Committee to dig into. But the decision contains the >>>> clearest statement of the extent of what constitutes "speech" under the >>>> ICCPR, namely that Article 19: "must be interpreted as encompassing every >>>> form of subjective ideas and opinions capable of transmission to others". >>>> It's an incredibly broad formulation - to cover virtually anything that >>>> conveys meaning. I, personally, can't see an interpretation of that that >>>> doesn't include domain names. >>> >>> >>> This is not really that broad a formulation -- it dovetails nicely with the >>> concept of "expressive speech" under US law (as in the excerpt from Gibson). >>> Furthermore, there is a considerable difference between the speech >>> constituting "subjective ideas and opinions" protected in Ballantyne and the >>> "incredibly broad formulation" that would elevate "virtually anything that >>> conveys meaning." "Subjective ideas and opinions" in no way embraces domain >>> names per se; whether and to what extent it embraces domain names is >>> certainly not a question answered in Ballantyne. >>>> >>>> >>>> With regard to Gibson v. Texas - I don't want to dig too deeply into this >>>> because, honestly, US law is not my specialisation. But I think that part of >>>> the disconnect between our positions is due to a particular aspect of the >>>> American understanding of free speech, that's sort of different to how it's >>>> understood virtually everywhere else. Under most systems, including the >>>> international example I just cited, virtually everything is classed as >>>> "speech", and then there's a balancing as to whether particular restrictions >>>> are justified. But because of the absolutist way the US Constitution is >>>> phrased ("Congress shall make no law"), the Courts have had to go through >>>> some unusual legal gymnastics to find that speech that they feel justified >>>> restricting isn't actually speech. >>> >>> >>> Simply reading the excerpt from Gibson v. Texas in my prior email shows that >>> this "speech/not speech" analysis is incorrect. Gibson, and the cases cited >>> in it, distinguish between protected speech and speech that that is "not to >>> be protected." Specifically, Gibson mentions that "courts have held that >>> domain names that use trademarks to misidentify the source of a product are >>> outside the reach of the First Amendment" and also cites a line of cases >>> where "the domain name was actually held not to be protected speech because >>> it was not expressive, not because it was misleading." More broadly, the >>> idea that the US approach to free speech is anomalous is incorrect. Of >>> course, free speech regimes vary broadly throughout the world -- so there's >>> no such thing as a single "understanding of free speech... virtually >>> everywhere else" aside from the US. Unfortunately, there are many places in >>> the world where there is no understanding of free speech at all.) If the US >>> approach to free speech tends to be different, it is in a greater tolerance >>> for controversial and offensive speech (what John Levine calls "the >>> absolutist U.S. first amendment approach"). This is why US law doesn't find >>> it so easy to restrict alleged "hate speech" as "virtually everywhere else", >>> and also why I can't be so comfortable in finding "no conflict" between free >>> speech and restricting hate speech. (And I say this as a member of a group >>> that is finding itself increasingly on the wrong end of both offensive >>> speech and hate speech.) >>>> >>>> >>>> So, without trying to belabour these issues, my point in the above is not >>>> to try and invalidate the trademark protection system - indeed, Greg's quite >>>> right to point out that trademarks are also speech. My point here is simply >>>> to try and demonstrate that there are free speech issues at play. >>> >>> >>> It's clear that this is false as a general statement, unless this is meant >>> as a statement that could possibly true in a large enough sample, like >>> "people are 7 feet tall". Whether one looks at Ballantyne or Gibson, one >>> sees clear distinctions being drawn being "subjective ideas and opinions" >>> and speech that is "not expressive" or "inherently misleading." This is >>> probably a good time to note that the UDHR and the ICCPR both refer to >>> "freedom of expression" and not to "free speech." So, it would be more >>> proper to discuss whether "expressive speech" is at issue, not whether the >>> over-broad "virtually anything that conveys meaning" is at issue, before we >>> even get to the question of whether free speech issues are at play, to what >>> extent, and how that might affect any discussion that is relevant to this >>> Working Group. >>> >>>> >>>> To me, that's not a controversial point - and if we can agree on that, >>> >>> >>> I don't think we can agree on that, and certainly not as an assumed >>> agreement from which one can proceed blithely on. Rather, I think that is >>> an elemental aspect of the discussion, and as noted above, at best >>> "controversial" and possibly sometimes true, and at worst false (at least as >>> a general statement). >>> >>> As an aside, it's worth noting what Article 19 of the ICCPR actually >>> protects: "the right to hold opinions without interference" and "the right >>> to freedom of expression; this right shall include freedom to seek, receive >>> and impart information and ideas of all kinds, regardless of frontiers, >>> either orally, in writing or in print, in the form of art, or through any >>> other media of his choice." I admit to struggling to find instances where >>> the right to hold opinions or to express oneself freely is truly being >>> violated in this context -- especially in a world where holding or >>> expressing an opinion can come under threat of oppression, suppression, >>> violence, imprisonment or worse. As someone who strongly supports First >>> Amendment rights and who has worked on litigation defending First Amendment >>> freedoms, I wonder whether this discussion trivializes free speech concerns >>> rather than promoting them. That is not to dismiss the possibility of free >>> speech concerns here, but just to say that, to the extent there is a viable >>> point here, it pales in comparison to the significant freedom of expression >>> concerns elsewhere (including elsewhere on the Internet, where access to >>> websites with undesirable opinions or expression, or even to the Internet as >>> a whole, is under escalating attack). >>> >>> >>>> >>>> then that is relevant to the transparency question, since in my mind it >>>> bolsters arguments for why openness in the system is important. >>> >>> >>> I don't get the logical leaps here, from the possibility of a free speech >>> issue, to the claimed relevance to the transparency question, to the even >>> more attenuated idea that this bolsters arguments regarding changing access >>> rules for the TMCH. In other words, I don't really think that any of this >>> changes the discussion on TMCH database access, nor do I really think it is >>> relevant to any of the work we are undertaking right now. That is not to >>> say that this is an uninteresting discussion (or else I would not have >>> engaged in it), just that it is a rabbit hole in relation to our work. >>>> >>>> >>>> Best, >>>> >>>> Michael >>>> >>>> On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan <gregshatanipc(a)gmail.com> >>>> wrote: >>>>> >>>>> It's important to keep in mind that the rights set forth in the UDHR are >>>>> interrelated and interdependent, so understanding the applicability of any >>>>> one Article also requires understanding the applicability of the other >>>>> rights in the UDHR, including some which may be countervailing to others. >>>>> Looking at Article 19 in isolation is "cherrypicking." A recent CircleID >>>>> article by John Levine is quite enlightening on this very point: >>>>> >>>>> http://www.circleid.com/posts/20170401_human_rights_and_regular_internet_us… >>>>> >>>>> The article is short, but for those who don't get there, this quote goes >>>>> to the heart of the matter: "it devalues the whole topic of human rights to >>>>> pay attention only to a few fashionable rights, while ignoring ones that are >>>>> at least as important in people's daily lives." >>>>> >>>>> (It should also be noted that the UDHR, while adopted by the United >>>>> Nations and widely used, does not constitute some form of "universal law" >>>>> nor is it universally accepted.) >>>>> >>>>> The case mentioned, Gibson v. Texas, has portions that are directly >>>>> applicable to the discussion at hand. However, the Gibson decision actually >>>>> distinguishes cases involving trademarks from the situation in that case. >>>>> As a matter of fact, the Gibson case tells us that there are at least two >>>>> types of domain names that do not constitute speech protected by the First >>>>> Amendment: domain names that infringe trademarks, and domain names that do >>>>> not constitute "expressive speech." >>>>> >>>>> (In other words, there can be no "freedom of expression" issue when the >>>>> speech is not expressive.) >>>>> >>>>> Before getting to an excerpt from the case, it's important to note that >>>>> the court did not find that domain names are speech, much less find that >>>>> domain names are speech protected by the First Amendment. The court made no >>>>> findings about all domain names. Rather, the court assumed, for the purpose >>>>> of considering a motion to dismiss, that the domain name in question >>>>> (texasworkerscomplaw.com) constituted commercial speech. It's also >>>>> important to note that the case involved the Constitutionality of a law that >>>>> broadly prohibited the use of the terms "Texas" and "workers comp," and not >>>>> a trademark infringement matter. >>>>> >>>>> The excerpt is quite instructive: >>>>> >>>>> >>>>> In order for speech to fall outside of the First Amendment’s protection, >>>>> the speech must either be “inherently likely to deceive,” or “the record >>>>> [must] indicate[] that a particular form or method of advertising has in >>>>> fact been deceptive.” R.M.J., 455 U.S. at 202. >>>>> >>>>> >>>>> Appellees primarily argue that the Texas statute is constitutional >>>>> because Gibson’s domain name amounts to inherently misleading speech. In >>>>> support of this proposition, they cite to a series of cases in which courts >>>>> have held that domain names that use trademarks to misidentify the source of >>>>> a product are outside the reach of the First Amendment. The case law cited >>>>> by Appellees, however, is unique to the field of trademark infringement, >>>>> see, e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does >>>>> not necessarily extend to a case such as this one, where Texas is >>>>> prohibiting Gibson from using words that are otherwise in the public >>>>> domain.[1] Cases involving trademark infringement involve inherently >>>>> deceptive speech because they contain a significant risk that an infringing >>>>> party will freeload on the goodwill that has been created by the original >>>>> trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here. >>>>> Texas has made no showing that its own talents and energy contributed to the >>>>> creation of any goodwill in the name “texasworkerscomplaw.com.” See San >>>>> Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 >>>>> (1987). Instead the regulation at issue is forward-thinking; intended to >>>>> prohibit confusion for individuals seeking information from the government >>>>> agency. It is not retrospective in the same way as most trademark >>>>> litigation, which is generally intended to preserve the reputation that has >>>>> been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, >>>>> the case law cited by Appellees is inapposite. >>>>> >>>>> >>>>> ________________________________ >>>>> >>>>> [1] In most of the cases cited by Appellees the domain name was actually >>>>> held not to be protected speech because it was not expressive, not because >>>>> it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No. >>>>> 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997); Morrison & >>>>> Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for >>>>> Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, >>>>> Gibson’s domain name is expressive because it does more than simply mimic >>>>> the state agency’s website or identify a source of Texas Workers’ >>>>> Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain >>>>> name is intended to direct visitors to a forum for discussing workers’ >>>>> compensation laws and their potential reform, as well as to convey to >>>>> visitors the message of Gibson’s website as a whole. Accordingly, in the >>>>> context of this case, the domain name is “‘sufficiently imbued with the >>>>> elements of communication’” to place it in the realm of expressive speech. >>>>> Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. >>>>> 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)). >>>>> >>>>> Greg Shatan >>>>> >>>>> >>>>> Greg Shatan >>>>> C: 917-816-6428 >>>>> S: gsshatan >>>>> Phone-to-Skype: 646-845-9428 >>>>> gregshatanipc(a)gmail.com >>>>> >>>>> >>>>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas >>>>> <mkaranicolas(a)gmail.com> wrote: >>>>>> >>>>>> It's an interesting question. Different national courts have handled >>>>>> the issue in different ways. In the US, for example, the Fifth Circuit >>>>>> Court of Appeals found in Gibson v. Texas that domain names are >>>>>> protected as speech under the 1st amendment. But freedom of expression >>>>>> in the US context tends to be understood differently than elsewhere, >>>>>> since the way it's protected under the US constitution is a bit >>>>>> different from how most constitutions frame their equivalent >>>>>> protections. >>>>>> >>>>>> That said - when you're asking about Article 19, the discussion comes >>>>>> at the international level where, as far as I know, there's no single >>>>>> authoritative treatment to point to. Generally, discussions of Article >>>>>> 19 by standard setting bodies tend to focus on the sharper and more >>>>>> controversial issues: hate speech, defamation, national security >>>>>> restrictions, etc. >>>>>> >>>>>> However - there's a clear and well developed test for restrictions on >>>>>> freedom of expression that's built right into the ICCPR, and which >>>>>> applies equally to all restrictions, namely that they should be: (1) >>>>>> provided by Law (which includes a requirement for clarity and >>>>>> transparency), (2) fulfill a legitimate purpose, and (3) be necessary >>>>>> and proportionate to the achievement of that goal. If we establish >>>>>> that domain names qualify as speech under Article 19 (which, according >>>>>> to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v. >>>>>> Canada, is a fairly sure interpretation), then understanding the >>>>>> applicability of Article 19 just means understanding that three part >>>>>> test. >>>>>> >>>>>> If you want more info, I'd recommend this briefing note as a useful >>>>>> (and concise!) introduction to restrictions on freedom of expression >>>>>> under Article 19: >>>>>> >>>>>> http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-briefingno… >>>>>> >>>>>> Or if you want to go into a little more depth, you can check out this >>>>>> one: >>>>>> http://www.law-democracy.org/live/wp-content/uploads/2012/08/Paper-on-Restr… >>>>>> >>>>>> Unfortunately - neither is specifically about domain names, but the >>>>>> discussion is basically analogous to how we understand other kinds of >>>>>> restrictions and protections. >>>>>> >>>>>> On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA) >>>>>> <migraham(a)expedia.com> wrote: >>>>>>> Michael: >>>>>>> >>>>>>> Where can I find a discussion how Article 19 and similar "Freedom of >>>>>>> Expression" requirements relate to or impact the registration of domain >>>>>>> names? >>>>>>> >>>>>>> >>>>>>> Michael R. >>>>>>> >>>>>>> Article 19. >>>>>>> Everyone has the right to freedom of opinion and expression; this >>>>>>> right includes freedom to hold opinions without interference and to seek, >>>>>>> receive and impart information and ideas through any media and regardless of >>>>>>> frontiers. >>>>>>> >>>>>>> -----Original Message----- >>>>>>> From: gnso-rpm-wg-bounces(a)icann.org >>>>>>> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas >>>>>>> Sent: Thursday, April 06, 2017 5:53 AM >>>>>>> To: J. Scott Evans <jsevans(a)adobe.com> >>>>>>> Cc: gnso-rpm-wg(a)icann.org >>>>>>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the >>>>>>> Working Group call held earlier today >>>>>>> >>>>>>> Once again - I have to jump in. Freedom of expression is very much a >>>>>>> universal concept: >>>>>>> >>>>>>> http://www.un.org/en/universal-declaration-human-rights/ >>>>>>> http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx >>>>>>> >>>>>>> That's why we call them "human" rights. Not "American" rights. >>>>>>> >>>>>>> >>>>>>> On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg >>>>>>> <gnso-rpm-wg(a)icann.org> wrote: >>>>>>>> The law is clear: an exact match isn't free speech. It is trademark >>>>>>>> infringement. A domain that coveys a message (e.g., hotels suck.com) is free >>>>>>>> speech and protected accordingly. Also, "free speech" is a US constitutional >>>>>>>> concept adopted by some countries, but it is not a universal legal concept. >>>>>>>> Perhaps universal free speech is aspirational, but it is not reality. >>>>>>>> >>>>>>>> Sent from my iPhone >>>>>>>> >>>>>>>>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann(a)leap.com> wrote: >>>>>>>>> >>>>>>>>> I'm not sure where J. Scott is getting his "facts", but my company >>>>>>>>> doesn't "arbitrage" nor has it registered *any* new gTLD domain >>>>>>>>> names >>>>>>>>> (and I have no desire for any), nor is it a "bad actor." If you have >>>>>>>>> proof that my company is a "bad actor", put it forward, rather than >>>>>>>>> sling unsupported innuendo. >>>>>>>>> >>>>>>>>> The whole point is that the "barriers" are put forth as *required* >>>>>>>>> to >>>>>>>>> deal with so-called "bad actors", but are instead used to advantage >>>>>>>>> certain groups, far beyond the "damage" that is claimed to be caused >>>>>>>>> by the "bad actors." >>>>>>>>> >>>>>>>>> I don't want to delve into politics, but some might see parallels to >>>>>>>>> certain government measures in some countries, where a "problem" is >>>>>>>>> claimed, but a Draconian solution is applied to deal with it. >>>>>>>>> >>>>>>>>> When it comes to the sunrise periods for new gTLDs, the "problem" is >>>>>>>>> claimed to be cybersquatting, but instead of relying on curative >>>>>>>>> rights, the Sunrise policy went too far and gave too many advantages >>>>>>>>> to TM holders, essentially creating an unlevel playing field between >>>>>>>>> *good actors* and TM holders. >>>>>>>>> >>>>>>>>> Free speech means *no prior restraints* (with very rare exceptions), >>>>>>>>> but harsh penalties for unlawful speech (curative rights). >>>>>>>>> >>>>>>>>> >>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. >>>>>>>>> >>>>>>>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811dc6e8437 >>>>>>>>> >>>>>>>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63 >>>>>>>>> >>>>>>>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g%2FOWfC >>>>>>>>> H7s%3D&reserved=0 >>>>>>>>> >>>>>>>>> Sincerely, >>>>>>>>> >>>>>>>>> George Kirikos >>>>>>>>> 416-588-0269 >>>>>>>>> >>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.l >>>>>>>>> >>>>>>>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%7Cfa7b1 >>>>>>>>> >>>>>>>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata=6BJPNx >>>>>>>>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0 >>>>>>>>> >>>>>>>>> >>>>>>>>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans <jsevans(a)adobe.com> >>>>>>>>>> wrote: >>>>>>>>>> The same logic applies to you and other domaines, cybersquatters, >>>>>>>>>> speculators and small businesses. The fact that you want to arbitrage in >>>>>>>>>> terms that are also trademarks is your choice and you have to deal with the >>>>>>>>>> barriers put in place to deal with the bad actors. >>>>>>>>>> >>>>>>>>>> Sent from my iPhone >>>>>>>>>> >>>>>>>>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann(a)leap.com> wrote: >>>>>>>>>>> >>>>>>>>>>> Hi folks, >>>>>>>>>>> >>>>>>>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian >>>>>>>>>>>> <brian.beckham(a)wipo.int> wrote: >>>>>>>>>>>> Finally, since the chart references the EFF letter, it is worth >>>>>>>>>>>> mentioning here that the fact that a trademark owner may pay >>>>>>>>>>>> (sometimes extremely high >>>>>>>>>>>> amounts) to defensively register a domain name exactly matching >>>>>>>>>>>> its trademark in a Sunrise process (and thereby taking it “off >>>>>>>>>>>> the >>>>>>>>>>>> market”) does not prevent free expression, which may be >>>>>>>>>>>> undertaken >>>>>>>>>>>> in countless other ways. The number of terms that may be >>>>>>>>>>>> appended >>>>>>>>>>>> to a trademark (not to mention typos) to engage in all manner of >>>>>>>>>>>> speech – fair or otherwise – is, practically-speaking, all but >>>>>>>>>>>> limitless. >>>>>>>>>>> >>>>>>>>>>> By that "logic", the number of terms that may be appended to a >>>>>>>>>>> common dictionary word (not to mention typos) to create a >>>>>>>>>>> trademarkable brand is, practically-speaking, all but limitless. >>>>>>>>>>> :-) >>>>>>>>>>> >>>>>>>>>>> In other words, those creating a new brand/trademark certainly had >>>>>>>>>>> the opportunity to create a longer (and thus inferior) alternative >>>>>>>>>>> to a commonly used dictionary word or other common term. The fact >>>>>>>>>>> that they decided instead to choose a common term that is widely >>>>>>>>>>> used by the public shouldn't give them any priority access in a >>>>>>>>>>> launch of a new gTLD. >>>>>>>>>>> >>>>>>>>>>> "I created a problem for myself, and I want ICANN to fix it" is >>>>>>>>>>> the >>>>>>>>>>> essence of the sunrise argument for commonly used terms, like >>>>>>>>>>> dictionary words and short acronyms. >>>>>>>>>>> >>>>>>>>>>> Sincerely, >>>>>>>>>>> >>>>>>>>>>> George Kirikos >>>>>>>>>>> 416-588-0269 >>>>>>>>>>> >>>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww >>>>>>>>>>> >>>>>>>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cf >>>>>>>>>>> >>>>>>>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata= >>>>>>>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 >>>>>>>>>>> _______________________________________________ >>>>>>>>>>> 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%7C2b7 >>>>>>>>>>> >>>>>>>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C >>>>>>>>>>> >>>>>>>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkF >>>>>>>>>>> D%2Fj6BAXDjiI%3D&reserved=0 >>>>>>>>> _______________________________________________ >>>>>>>>> gnso-rpm-wg mailing list >>>>>>>>> gnso-rpm-wg(a)icann.org >>>>>>>>> >>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.i >>>>>>>>> >>>>>>>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C811dc6e >>>>>>>>> >>>>>>>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0% >>>>>>>>> >>>>>>>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZQh1s99f >>>>>>>>> s%3D&reserved=0 >>>>>>>> _______________________________________________ >>>>>>>> gnso-rpm-wg mailing list >>>>>>>> gnso-rpm-wg(a)icann.org >>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>>>> _______________________________________________ >>>>>>> gnso-rpm-wg mailing list >>>>>>> gnso-rpm-wg(a)icann.org >>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>>> _______________________________________________ >>>>>> gnso-rpm-wg mailing list >>>>>> gnso-rpm-wg(a)icann.org >>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >>>>> >>>>> >>>> >>> >>> >>> _______________________________________________ >>> gnso-rpm-wg mailing list >>> gnso-rpm-wg(a)icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > > ________________________________ > > Confidentiality Notice: > This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. > > ________________________________ > > ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

4 3

Do we have an agenda for next week's call?
by Paul McGrady April 8, 2017

April 8, 2017

Co-Chairs: Our call is on Wednesday and it would be really great to have an agenda for next week's call today so that we can spend our weekend time preparing for the call. Can we get an agenda on Friday, early, as a matter of course? Best, Paul

2 2

Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
by J. Scott Evans April 7, 2017

April 7, 2017

I agree there are alternatives. I would recommend that we consider that all future TLDs need to be sponsored and that the registries need to verify and take responsibility for the use of the domains within there registries. They could have a notice and takedown system. 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 4/7/17, 12:31 AM, "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: Hello all. I have been following these threads with growing concerns. It seems people are letting their anger show and I ask that the discussion be rebooted. Email is a horrible communication system - even when polite emails are often misconstrued. Seems to me that the issues all seem to center around the following: 1. Sunrise as inconsistent with freedom of expression 2. Sunrise is unfair because it provides a priority right to TMCH registrants over all other potential registrants. Regarding #1 there is no doubt that the sunrise system infringes on speech freedoms. The infringement is not avoided simply because The speaker has an alternative channel; part of the freedom incorporates the communicative aspects of being able to select the method of speech itself. There are indeed many enroachments upon freedom of speech. Some are permissible. Some are not. Whether a particular impact is permissible or appropriate requires a balance of interest. That balance includes the societal interests in restricting speech vs not. The speaker's interests Whether alternatives to the restrictions exist. Seems to me here that alternatives do exist which alone may not preclude all possible trademark abuse but acting together may. These include the use of the pre-registration TMCH notice (which I am told is extremely effective), the UDRP, The URS, and of course litigation. There are also of course economic forces wherein the registration price is placed outside of the affordable range for an abuser. This issue is not limited to trademark rights. It arises anytime there is a priority granted. I ask that we consider all of the above. 2. The priority right. In addition to the speech related issue above there is the issue of priority based upon trademark rights. To determine if this is being abused or if the benefits granted are not otherwise justified we need data. L > On Apr 6, 2017, at 12:47 PM, Jon Nevett <jon(a)donuts.email> wrote: > > Contrary to George's fears, for example, it seems clear from the study that Sunrise is not being used by trademark owners to monopolize generic terms. Nor is there any empirical evidence that it has had any negative effect on non-trademark owner registrants or applicants. I ask that Jon kindly provide the data. I have not seen any data that would permit such a conclusion. This would require data as to: - the actual mark's in the TMCH, - the number of sunrise registrations undertaken based on a TMCH registration, - the number of post-sunrise, pre-registration notices sent to registrants, and - the number of registrations subsequently undertaken notwithstanding the notice (from which we can determine the number of domain registrations abandoned post notice. If we do this honestly then "camps" don't matter and insults and offensive language can be avoided. We are tasked with making recommendations that will benefit the entire space and we should strive to avoid words and decisions that separate us from that goal. Paul Keating. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o…

1 0

FW: [Ext] Fwd: Action Items, Slides and Notes from the Working Group call held earlier today
by Mary Wong April 7, 2017

April 7, 2017

Forwarding on behalf of Rebecca Tushnet, as it appears her original message did not go through to the whole mailing list. Cheers Mary ---------- Forwarded message ---------- From: Rebecca Tushnet <Rebecca.Tushnet(a)law.georgetown.edu> Date: Fri, Apr 7, 2017 at 10:19 AM Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today To: Cc: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> It's not clear to me why "only some uses of domain names are protected free speech" is an answer to the problem "the current system allows widespread preclusion of protected free speech." Both of these things can easily be true. I would be particularly interested in reading some discussion of the independent review's Table 1, which appears to indicate that over 10% of downloaded strings are common words, and not "apple" or "fox" (common words that are also associated with famous brands): String Download Count Trademark Holder(s) smart 15,198 Smart Communications, Daimler AG forex 14,823 Forex Bank AB hotel 14,690 Hotel Top Level Domain GMBH one 14,205 American Academy of Ophthamology love 13,912 Cartier International AG, The Conde Nast Publications cloud 13,821 Individual nyc 13,622 City of New York, NYC & Company london 13,343 London & Partners abc 13,331 LV Insurance Management Limited luxury 13,125 ILUX Holdings Rebecca Tushnet Georgetown Law 703 593 6759 On Fri, Apr 7, 2017 at 7:55 AM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com> wrote: > Michael: > > U.S. Law does not protect domain names in and of themselves as free speech. Rather, the notion of free speech as applied to domain names concerns ‎ the communicative aspect of the domain name at issue and the use of the domain name. A domain name such as BRANDsucks.com has a communicative aspect that could enjoy protection under the first amendment, but if the domain name is being used by a competitor to promote and sell its own products, then that would probably take it out of the scope of free speech under the first amendment Similarly, if one registers BRANDLovesJesus.com and uses it for a website concerning abortion rights (the 8th Circuit Purdy case) , that would not be protected free speech if the brand had never commented on abortion rights (e.g., you cannot use a domain name to ascribe speech to someone who never made speech in that regard). The bottom line, is that first amendment protection under US law‎ for domain name registrations is contextual and not just based on the name itself. > > Original Message > ‎ > From: Michael Karanicolas‎ > Sent: Thursday, April 6, 2017 11:00 PM > To: Michael Graham (ELCA) > Cc: gnso-rpm-wg(a)icann.org > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today > > > It's an interesting question. Different national courts have handled > the issue in different ways. In the US, for example, the Fifth Circuit > Court of Appeals found in Gibson v. Texas that domain names are > protected as speech under the 1st amendment. But freedom of expression > in the US context tends to be understood differently than elsewhere, > since the way it's protected under the US constitution is a bit > different from how most constitutions frame their equivalent > protections. > > That said - when you're asking about Article 19, the discussion comes > at the international level where, as far as I know, there's no single > authoritative treatment to point to. Generally, discussions of Article > 19 by standard setting bodies tend to focus on the sharper and more > controversial issues: hate speech, defamation, national security > restrictions, etc. > > However - there's a clear and well developed test for restrictions on > freedom of expression that's built right into the ICCPR, and which > applies equally to all restrictions, namely that they should be: (1) > provided by Law (which includes a requirement for clarity and > transparency), (2) fulfill a legitimate purpose, and (3) be necessary > and proportionate to the achievement of that goal. If we establish > that domain names qualify as speech under Article 19 (which, according > to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v. > Canada, is a fairly sure interpretation), then understanding the > applicability of Article 19 just means understanding that three part > test. > > If you want more info, I'd recommend this briefing note as a useful > (and concise!) introduction to restrictions on freedom of expression > under Article 19: > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law-2Ddemocracy.org… > > Or if you want to go into a little more depth, you can check out this > one: https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law-2Ddemocracy.org… > > Unfortunately - neither is specifically about domain names, but the > discussion is basically analogous to how we understand other kinds of > restrictions and protections. > > On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA) > <migraham(a)expedia.com> wrote: >> Michael: >> >> Where can I find a discussion how Article 19 and similar "Freedom of Expression" requirements relate to or impact the registration of domain names? >> >> >> Michael R. >> >> Article 19. >> Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. >> >> -----Original Message----- >> From: gnso-rpm-wg-bounces(a)icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas >> Sent: Thursday, April 06, 2017 5:53 AM >> To: J. Scott Evans <jsevans(a)adobe.com> >> Cc: gnso-rpm-wg(a)icann.org >> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today >> >> Once again - I have to jump in. Freedom of expression is very much a universal concept: >> >> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.un.org_en_universal… >> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ohchr.org_EN_Profes… >> >> That's why we call them "human" rights. Not "American" rights. >> >> >> On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg(a)icann.org> wrote: >>> The law is clear: an exact match isn't free speech. It is trademark infringement. A domain that coveys a message (e.g., hotels suck.com) is free speech and protected accordingly. Also, "free speech" is a US constitutional concept adopted by some countries, but it is not a universal legal concept. Perhaps universal free speech is aspirational, but it is not reality. >>> >>> Sent from my iPhone >>> >>>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann(a)leap.com> wrote: >>>> >>>> I'm not sure where J. Scott is getting his "facts", but my company >>>> doesn't "arbitrage" nor has it registered *any* new gTLD domain names >>>> (and I have no desire for any), nor is it a "bad actor." If you have >>>> proof that my company is a "bad actor", put it forward, rather than >>>> sling unsupported innuendo. >>>> >>>> The whole point is that the "barriers" are put forth as *required* to >>>> deal with so-called "bad actors", but are instead used to advantage >>>> certain groups, far beyond the "damage" that is claimed to be caused >>>> by the "bad actors." >>>> >>>> I don't want to delve into politics, but some might see parallels to >>>> certain government measures in some countries, where a "problem" is >>>> claimed, but a Draconian solution is applied to deal with it. >>>> >>>> When it comes to the sunrise periods for new gTLDs, the "problem" is >>>> claimed to be cybersquatting, but instead of relying on curative >>>> rights, the Sunrise policy went too far and gave too many advantages >>>> to TM holders, essentially creating an unlevel playing field between >>>> *good actors* and TM holders. >>>> >>>> Free speech means *no prior restraints* (with very rare exceptions), >>>> but harsh penalties for unlawful speech (curative rights). >>>> >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protect… . >>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811dc6e8437 >>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63 >>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g%2FOWfC >>>> H7s%3D&reserved=0 >>>> >>>> Sincerely, >>>> >>>> George Kirikos >>>> 416-588-0269 >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protect… >>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%7Cfa7b1 >>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata=6BJPNx >>>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0 >>>> >>>> >>>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans <jsevans(a)adobe.com> wrote: >>>>> The same logic applies to you and other domaines, cybersquatters, speculators and small businesses. The fact that you want to arbitrage in terms that are also trademarks is your choice and you have to deal with the barriers put in place to deal with the bad actors. >>>>> >>>>> Sent from my iPhone >>>>> >>>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann(a)leap.com> wrote: >>>>>> >>>>>> Hi folks, >>>>>> >>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian <brian.beckham(a)wipo.int> wrote: >>>>>>> Finally, since the chart references the EFF letter, it is worth >>>>>>> mentioning here that the fact that a trademark owner may pay >>>>>>> (sometimes extremely high >>>>>>> amounts) to defensively register a domain name exactly matching >>>>>>> its trademark in a Sunrise process (and thereby taking it “off the >>>>>>> market”) does not prevent free expression, which may be undertaken >>>>>>> in countless other ways. The number of terms that may be appended >>>>>>> to a trademark (not to mention typos) to engage in all manner of >>>>>>> speech – fair or otherwise – is, practically-speaking, all but limitless. >>>>>> >>>>>> By that "logic", the number of terms that may be appended to a >>>>>> common dictionary word (not to mention typos) to create a >>>>>> trademarkable brand is, practically-speaking, all but limitless. >>>>>> :-) >>>>>> >>>>>> In other words, those creating a new brand/trademark certainly had >>>>>> the opportunity to create a longer (and thus inferior) alternative >>>>>> to a commonly used dictionary word or other common term. The fact >>>>>> that they decided instead to choose a common term that is widely >>>>>> used by the public shouldn't give them any priority access in a >>>>>> launch of a new gTLD. >>>>>> >>>>>> "I created a problem for myself, and I want ICANN to fix it" is the >>>>>> essence of the sunrise argument for commonly used terms, like >>>>>> dictionary words and short acronyms. >>>>>> >>>>>> Sincerely, >>>>>> >>>>>> George Kirikos >>>>>> 416-588-0269 >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protect… >>>>>> .leap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cf >>>>>> a7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata= >>>>>> 6px9twhTFpg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 >>>>>> _______________________________________________ >>>>>> gnso-rpm-wg mailing list >>>>>> gnso-rpm-wg(a)icann.org >>>>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protect… >>>>>> .icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C2b7 >>>>>> c1e08334543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C >>>>>> 0%7C0%7C636270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkF >>>>>> D%2Fj6BAXDjiI%3D&reserved=0 >>>> _______________________________________________ >>>> gnso-rpm-wg mailing list >>>> gnso-rpm-wg(a)icann.org >>>> https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protect… >>>> cann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C811dc6e >>>> 8437245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0% >>>> 7C636270794483518369&sdata=mJrIOSHwtTJCADlJ8m6UiUx7baKNfoXhIpZQh1s99f >>>> s%3D&reserved=0 >>> _______________________________________________ >>> gnso-rpm-wg mailing list >>> gnso-rpm-wg(a)icann.org >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > > ________________________________ > > Confidentiality Notice: > This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. > > ________________________________ > > ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
by J. Scott Evans April 6, 2017

April 6, 2017

My earlier email listing the various types of third parties that may be involved was in no way meant to conflate a domainer/speculator with a cybersquatter. 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 4/6/17, 7:18 AM, "Phil Corwin" <psc(a)vlaw-dc.com> wrote: I must once again point put that domainers are not equivalent to cybersquatters and should not be lumped together. Domainers are domain investors and developers. One can call them speculators, although as far as I know speculation in assets of any type -- and the market has clearly demonstrated that domains can be very valuable assets -- is an accepted and legal aspect of the same capitalist system that grants limited monopoly rights in various categories of intellectual property to further valid public purposes. UDRP decisions have repeatedly found that holding a domain portfolio for investment purposes is not a per se infringing activity. Cybersquatters, on the other hand, are parties who register domains with the bad faith intent to subsequently use them to target a trademark owner's goods and services and thereby infringe the mark. I do not represent such parties and favor effective enforcement of TM rights against them. I hope we can keep that distinction clear. 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 -----Original Message----- 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: Thursday, April 06, 2017 8:08 AM To: George Kirikos Cc: gnso-rpm-wg(a)icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today The same logic applies to you and other domaines, cybersquatters, speculators and small businesses. The fact that you want to arbitrage in terms that are also trademarks is your choice and you have to deal with the barriers put in place to deal with the bad actors. Sent from my iPhone > On Apr 6, 2017, at 4:59 AM, George Kirikos <icann(a)leap.com> wrote: > > Hi folks, > >> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian <brian.beckham(a)wipo.int> wrote: >> Finally, since the chart references the EFF letter, it is worth >> mentioning here that the fact that a trademark owner may pay >> (sometimes extremely high >> amounts) to defensively register a domain name exactly matching its >> trademark in a Sunrise process (and thereby taking it “off the >> market”) does not prevent free expression, which may be undertaken in >> countless other ways. The number of terms that may be appended to a >> trademark (not to mention typos) to engage in all manner of speech – >> fair or otherwise – is, practically-speaking, all but limitless. > > By that "logic", the number of terms that may be appended to a common > dictionary word (not to mention typos) to create a trademarkable brand > is, practically-speaking, all but limitless. :-) > > In other words, those creating a new brand/trademark certainly had the > opportunity to create a longer (and thus inferior) alternative to a > commonly used dictionary word or other common term. The fact that they > decided instead to choose a common term that is widely used by the > public shouldn't give them any priority access in a launch of a new > gTLD. > > "I created a problem for myself, and I want ICANN to fix it" is the > essence of the sunrise argument for commonly used terms, like > dictionary words and short acronyms. > > Sincerely, > > George Kirikos > 416-588-0269 > https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.le > ap.com%2F&data=02%7C01%7C%7C2b7c1e08334543cacbff08d47ce46e63%7Cfa7b1b5 > a7b34438794aed2c178decee1%7C0%7C0%7C636270767931993418&sdata=6px9twhTF > pg2YYaKWPoClt%2FQGQKnakm1jerYcSj%2F2w0%3D&reserved=0 > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg(a)icann.org > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.ic > ann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C2b7c1e083 > 34543cacbff08d47ce46e63%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C6 > 36270767931993418&sdata=jZh3dzb5ycHMZLxsR4ZLmQdR%2B2kWcBkFD%2Fj6BAXDji > I%3D&reserved=0 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o… ----- No virus found in this message. Checked by AVG - https://na01.safelinks.protection.outlook.com/?url=www.avg.com&data=02%7C01… Version: 2016.0.8012 / Virus Database: 4769/14210 - Release Date: 03/30/17 Internal Virus Database is out of date.

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Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group
by Terri Agnew April 5, 2017

April 5, 2017

Dear All, Please find the attendance of the call attached to this email. The MP3, Adobe Connect recording and Adobe Connect chat below for the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group call held on Wednesday, 05 April 2017 at 17:00 UTC. Attendance of the call is posted on agenda wiki page: https://community.icann.org/x/b8bRAw MP3: https://audio.icann.org/gnso/gnso-rpm-review-05apr17-en.mp3 Adobe Connect recording: <https://participate.icann.org/p4qurzs9548/?OWASP_CSRFTOKEN=e3a2073779853843 886d55424ea456ee1ea5baaa166576b62ea40857bdfd81ad> https://participate.icann.org/p4qurzs9548/ 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/> http://mm.icann.org/pipermail/gnso-rpm-wg/ Wiki page: https://community.icann.org/x/wCWAAw Thank you. Kind regards, Terri Agnew Adobe Connect chat transcript for 05 April 2017: Terri Agnew:Welcome to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group on Wednesday, 05 April 2017 at 17:00 UTC for 90 minutes Terri Agnew:agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_b 8bRAw <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_ b8bRAw&d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpC IgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=9Askb1nx2rVZt_Cm6n323MbSsZ7X2nprqbMlaBbf0s E&s=kG_4fQvu8jnqS0zd5VG-nUPHq6Gzs3W4dxTbvd22oaE&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=9Askb1nx2rVZt_Cm6n323MbSsZ7X2nprqbMlaBbf0sE&s=kG _4fQvu8jnqS0zd5VG-nUPHq6Gzs3W4dxTbvd22oaE&e= George Kirikos:Hi folks! George Kirikos:Perhaps blasting out an email reminder will help attendance? Yuri Chumak:greetings ! George Kirikos:Welcome, Yuri. Terri Agnew:@George, will send reminder email out Martin Silva Valent:Hi all Paul Tattersfield:I don't think swithcing between this time and an hour earlier is a good move for attendance numbers it may be better to choose one and stick to it George Kirikos:Hi Martin and Paul. Paul Tattersfield:Hi George Mary Wong:@Paul T, the one hour time change for this 2nd rotational week is to accommodate the RySG standing call, I believe. Philip Corwin:Hello all George Kirikos:Welcome, Phil. J. Scott Evans:I am here. I am here. Paul Tattersfield:are ok thanks Mary, it just makes ti more diffcult to schedule especially now the calls are longer Mary Wong:Document is unsync'ed Terri Agnew:finding the line causing noise Michael R Graham:Morning all. George Kirikos:Welcome Michael. Kristine Dorrain - Amazon Registry Services:I was off the list this week due to obligations, but I will be volunteerings. Kristine Dorrain - Amazon Registry Services:All/any. :) Kristine Dorrain - Amazon Registry Services:OK, good, I'll reply by email, thanks. Kristine Dorrain - Amazon Registry Services:I have no voice today. Amr Elsadr:Thanks Kristine. George Kirikos:Donuts, Rightside, etc. George Kirikos:(blocking lists) Mary Wong:@Brian, basically the additional voluntary protections that are being offered by some new gTLD registry operators. Mary Wong:(ooops just realized Brian B isn't on AC!) George Kirikos:He can read the transcript later. :-) Mary Wong:The consolidated Sunrise and Claims Charter questions (unedited, from the Charter) have been distributed twice to the list :) George Kirikos:https://community.icann.org/display/RARPMRIAGPWG/2017-04-05+Review+o f+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG if anyone needs the link. Martin Silva Valent:thkns George Kirikos:On to #6 next steps? George Kirikos:(or #3) Maxim Alzoba (FAITID):Hello All George Kirikos:Hi Maxim. George Kirikos:Subgroups are more organizational, I think. George Kirikos:Subgroups shouldn't be doing the actual policy work, in my view. Jeff Neuman:i defer to Phil Maxim Alzoba (FAITID):@Mary, sorry for being a bit late, I have an update to my SOI (added SSC to .12.) Amr Elsadr:Thanks Maxim. Will note that. Maxim Alzoba (FAITID):thanks George Kirikos:Data gathering and organization only. J. Scott Evans:The two meeting limintations was only on the refining issue. I felt the sub-groups would continue to work throughout our work on Sunrise and TM Claims. J. Scott Evans:See my response above regarding the two meetings. I meant the First Two Meetings for questions refinement and then further meetings crafting recommend answers to these questions. J. Scott Evans:Michael. EXACTLY!!!! J. Scott Evans:Mary: EXACTLY. Michael R Graham:I also think that if we do agree and change the working groups to begin analyzing/answering questions and identifying data that will be necessary, more members will volunteer to participate. Mary Wong:@George, yes they do (all meetings recorded and drafts published) Michael R Graham:@George: Agree, subgroups not to do policy-making, but also not to merely rehash Charter Questions. Good comment on use of list. Kristine Dorrain - Amazon Registry Services:I think if they are substantive, the groups will fill. George Kirikos:We already increased our time from 1 hour to 90 mins/week. If there are 3 subteams, that means 5 or 6 hours per week, for those who want to participate in all three? Maxim Alzoba (FAITID):do we know numbers reached so far for sub-groups ? Maxim Alzoba (FAITID):the other week meeting idea is great George Kirikos:If the subteams are going to be deciding policy recommendations, membership will certainly rise. Mary Wong:@Maxim, about 3-4 for Sunrise and Private Protections, about 7 for Claims (not counting the co-chairs). However, as Kristine and others noted, if Sub Teams are charged to do initial analysis to bring back to the full WG, it's likely we will get more volunteers Philip Corwin:@Kristine--that's my concern-- that if subgroups go beyond organizing the Qs and identifying data needs and go on to making substantice policy recommendations that their ranks will swell to the point where we lose the efficiency we are seeking Michael R Graham:@Maxim +1 Kristine Dorrain - Amazon Registry Services:Phil, didn't Sub Pro PDP handle this appropriately? Kristine Dorrain - Amazon Registry Services:They have work tracks that report in. Mary Wong:Our WG currently has 158 members ... Mary Wong:@Kristine, yes - and I think that's what Jeff has his hand up for. Martin Silva Valent:I just submiited to be volunteer for the Sunrise Sub-group yesterday. I think that the idea is not to overload us with was is supposed to be the work of dozen of people. I agree that our goal should be, for this first stage, just to investigate and clarify the questions. Kristine Dorrain - Amazon Registry Services:Apologies to all - I will be on and off the call because i'm getting in a cab. Will be off Adobe and review the parts I missed. Maxim Alzoba (FAITID):those items are important (sunrise , claims, private protection) ... it is reflection of Rights Protection from operational perspective in ICANN ecosystem Michael R Graham:@J.Scott -- Thanks for "2 meeting" clarification. Makes sense. Mary Wong:Welcome Greg Rafert and Stacey Chan from the Analysis Group. George Kirikos:Perhaps have a more organized set of discussion on the mailing lists? Mary Wong:Greg, Stacey - we are just running through some admin/planning discussions. George Kirikos:e.g. have multiple organized threads/topics, and kept on topic. George Kirikos:Otherwise, it'll be volunteer burnout for the subteams. J. Scott Evans:We are not PASSING anything off. All decisions and consensus is being made at the full WG George Kirikos:But, there will be de facto deference, since they'll say "we spent 30 hours on this, so we're expert on the topic". George Kirikos:Better to have that all out before the entire group, in my opinion. J. Scott Evans:George. I disagree. If you are concerned, sign up and participate. Greg Rafert and Stacey Chan, Analysis Group:Analysis Group (Greg Rafert and Stacey Chan) has joined the call. Greg Rafert and Stacey Chan, Analysis Group:Apologies for the delay in joining. Kathy Kleiman:Welcome Analysis Group! Michael R Graham:@George: I would hope groups wouldn't take that "I'm expert" position -- but they would hopefully refine issues to enable entire group to discuss meaningfully. Maxim Alzoba (FAITID):I am not sure that is will be possible to be on two of those subgroups the same time (overlaps and time) Michael R Graham:@Jeff -- Agree. Jeff Neuman:If people in this WG have any views, please express them Jeff Neuman:If people in this WG have any views, please express them J. Scott Evans:@Maxim. We can change that and make them not overlap. Paul Tattersfield:I'm not so sure, in the last subgroup there was at least one member looking to remove questions that were eventually included, had the sub group been snaller those discussions may have been missed Jeff Neuman:But hopefully we can get added participation with other leaders of the subgroups George Kirikos:+1 Paul Jeff Neuman:I am not sure what that means Paul? George Kirikos:Draft Report is at https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_r eviews_tmch_revised-2Dservices-2Dreview-2D22feb17-2Den.pdf <https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_ reviews_tmch_revised-2Dservices-2Dreview-2D22feb17-2Den.pdf&d=DwICaQ&c=FmY1u 3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn- H4xR2EBk&m=9Askb1nx2rVZt_Cm6n323MbSsZ7X2nprqbMlaBbf0sE&s=ypmWkQysmmw3ckXufTQ ZUvjzUaE3vtEUZJC0uTDWo1w&e> &d=DwICaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXh FzL7ar9Qfqa0AIgn-H4xR2EBk&m=9Askb1nx2rVZt_Cm6n323MbSsZ7X2nprqbMlaBbf0sE&s=yp mWkQysmmw3ckXufTQZUvjzUaE3vtEUZJC0uTDWo1w&e= in case anyone wants to see it outside Adobe. Paul Tattersfield:Some members have a business interest Jeff, if they can get subjects removed the status quo persists and that may benefit their employer J. Scott Evans:@Paul. Given that the sub-teams have to get full WG approval. I don't see your concern here. George Kirikos:@JScott: it assumes that others are closely following the work of the subteams. George Kirikos:Unless one actually follows their work, one isn't going to catch all those things. Maxim Alzoba (FAITID):as I understand SubGroups will report to WG each meeting Jeff Neuman:@Paul and @George - based on the actual evidence of having implemented subteams who are comprised of many with business interests, that has not been the case Amr Elsadr:@Maxim: I believe the suggestion was that the sub groups would report to the full WG every other meeting. Mary Wong:Our understanding is that Sub Teams will have their calls recorded and documents distributed for the rest of the WG to review, in addition to regular reporting to and discussion with the full WG. Jeff Neuman:@mary - correct J. Scott Evans:@Mary. Correct. George Kirikos:Can we assume everyone has read this report? George Kirikos:(we only have 43 mins left) Maxim Alzoba (FAITID):transcripts? Jeff Neuman:@George we should assume everyone has, yes and only discuss the changes Mary Wong:@Maxim, yes - exactly like a WG meeting Maxim Alzoba (FAITID):good George Kirikos:Good, Jeff. That way we can jump to changes, and Q&A. Mary Wong:While waiting for the slides to upload, we've put back up the actual report George Kirikos:It looks like the redline version of the report, rather than the clean one (clean one is on the wiki). Paul Tattersfield:@J. Scott in the last subgroup there were questions from the community that would have been removed or substantially amended had there not been objections from other group members and the full working group may never have been aware of those community unless the had reviewed all of the original documents concerned. Maxim Alzoba (FAITID):is it possible to provide us with the URL to this particular slide deck? George Kirikos:Page 18: 93.7%. Mary Wong:@Maxim, we just received the slides. We will circulate and upload to the wiki after this call. Maxim Alzoba (FAITID):thanks Griffin Barnett:Ultimately, though, there are those caveats: the data was inconclusive as to any abandonment causation vis-a-vis claims notice Kathy Kleiman:@All - we have individual control now. Poncelet Ileleji:Thanks for the update Martin Silva Valent:thkns! Maxim Alzoba (FAITID):was technical testing included into possible reasons? Jeff Neuman:I am not confident at all that each ping is an "attempted registration" Martin Silva Valent:Is that a Chilling effect in moiton? Colin O'Brien:Jeff I agree Griffin Barnett:+1 Jeff Maxim Alzoba (FAITID):+1 Jeff Mary Wong:@Jeff, I suppose the clearest indication of what is an "attempted registration" is only when something actually triggers a Claims Notice. George Kirikos:We'd need to get an (anonymized) analysis of the abandonment rate for non-claims notice domains, e.g. .com/net/org, or new gTLDs after the 90 days (where there's no claims notice). Phil Marano (Mayer Brown):The revised report indicates in several areas that conclusions could not be reached because various parties failed to respond to requests from Analysis Group for additional data. It would be great to recieve additional context from Analysis Group on the specific requests it made, to whom, and any reasons given for failure to respond or provide the requested data. Maxim Alzoba (FAITID):@George, some Registries have no-ending claims ... I think it might be a good idea to check those too George Kirikos:Perhaps one can get different percentages for different registrars, instead of aggregating, to see if there are outliers. Maxim Alzoba (FAITID):to see patterns /if any George Kirikos:(e.g. if 20 registrars are at 95%, and 200 registrars are at 70%, that would show more colour) Philip Corwin:Observation--the abandonment rate is so high that even if a high % of initial registration attempts are for technical or "gaming" reasons, a very high % of authentic attempted registrations are being abandonned -- and we don't know what the disvision between infringing and non-infringing registaraions would have been if the registrations had been completed. George Kirikos:@Phil: slicing the data by date would help reveal that. George Kirikos:e.g. abandonment rate in first 10 days, next 10 days, .... 81st - 90th day. George Kirikos:(i.e. measured from GA) Beth Allegretti:I have to go to a meeting so am leaving the call. Maxim Alzoba (FAITID):also 90+ data might be required for forever-claims registries George Kirikos:Cleaning up "noisy" data is a major part of statistical analysis. Michael R Graham:Question: So if the registration application was abandoned AG could not see the DOMAIN applied for, so there's no way of tracing duplicate pings, etc.? Kristine Dorrain:do we know if a user who got a claims notice and abandoned their attempt to register then subsequently decided later to go back and register the domain despite the claims notice? Maxim Alzoba (FAITID):what I heard a lot - some potential registrants were freaked out by the claims notice, due to contents of the message Michael R Graham:Question: In analysis, doesn't high abandonment rate also evidence the effectiveness of the Claims Service? Kristine Dorrain:Maxim, is there any data about if registrants went away to research then came back and weren't scared away? Maxim Alzoba (FAITID):I do not think so, it is offline process mostly (when the potential registrant makes a decision ) Maxim Alzoba (FAITID):or at least not known to registries Maxim Alzoba (FAITID):in terms of logs Terri Agnew:@Martin, we are unable to hear you. Your mic is ative but we are not hearing you, please let me know if assistance is needed Greg Shatan:Why do we say that this is "high"? What are we comparing it to? Jeff Neuman:Phil - I am not sure we can make that assumption J. Scott Evans:Deterent is not a bad thing. J. Scott Evans:Correct Phil. A great deal of "assumptions: Griffin Barnett:We don't know if the Notice was actually the cause of abandonment - it could be any number of other factors, such as registration price, etc. Greg Shatan:We have no data on intent. Kathy Kleiman:@Martin: are you reading to speak? George Kirikos:In case we run out of time, here are the questions I had. (A) On page 9, it says the median TMs registered in the TMCH was 1. Can we get more detail in buckets? (e.g. # that reg'd 2-5, 6-10, 11-50, 51-100, etc). (B) On page 9, the top 10 most popular strings (e.g. SMART, FOREX, HOTEL, etc) were listed. Can we get the top 500? (C) Report said costs were too high. ICANN has the right to audit Deloiite, to determine if costs are reasonable. Is The Analysis Group qualified to do such an audit? (my back of the envelope calculations suggest $10 - $15/yr is possible). George Kirikos:(C) Costs too high via Survey Data, to clarify. Griffin Barnett:I think someone may have suggested this earlier, but is there data on abandonment of registrations where there is no Claims Notice (e.g. legacy TLDs)? Mary Wong:@Griffin, I don't know but I would think that kind of data would reside with registrars individually. George Kirikos:(page 64 discusses costs, via the survey) Martin Silva Valent:Ok, her eI fix my mic George Kirikos:@Griffin: probably registrars have it, but it's a matter of convincing them to provide it, and anonymize it. Philip Corwin:@Griffin--maybe they have data on abandonment vrate between registries with high registration prices ($50+) and very low (>$1) Greg Shatan:I don't think the logic on the second bullet point works. Griffin Barnett:@Phil, that could be of interest. Anything to help establish a baseline of registration abandonment might be useful Griffin Barnett:Without that, it seems a lot of asusmptions are being drawn around correlation/causation of the notice and its impact on abandonment Paul Tattersfield:The abandonment is probably a good thing for would be registrants, trying to promote a product or service which has the same name as a huge brand even in a totally unrelated category of good and services is a never ending headache even if you have absolutely no intention or way to infringe the larger brand. Philip Corwin:But I agree that we have conclusive data that there is a high correlation between receipt of a Claims Notice and registration abandonment, but not necessarily causation (observing further that if there is no causation then it would not be achieving its goal of deterring cybersquatters) George Kirikos:@Paul: but we know from page 9 that the most commonly searched terms were common words like SMART, HOTEL, etc. George Kirikos:Page 9 didn't have terms like "Verizon", "Google", "Yahoo", etc. Greg Shatan:Do we have any data on abandonment during the same periods. for those starting the registration process but not receiving a claims notice? Jeff Neuman:Plus, there were A LOT of registrars that did not participate in selling a TLD until after the Claims period was over Michael R Graham:The "cost" analysis is something else I think we should drill into -- what ARE the costs? Merely narrative? Jeff Neuman:I am not sure how you measure those costs George Kirikos:Sound went off there. George Kirikos:Breaking up. Salvador Camacho:Martin, your audio is not working Kristine Dorrain:cutting out George Kirikos:I don't think they had data on the prospective registrant. Michael R Graham:@Jeff: I think your point is right on: We can conclude from the data that the TM Claims Notice results in a high number of abandonments. however, we cannot conclude whether the abandonments are of bad faith, good faith or no faith applications. Martin Silva Valent:I will type it here Jeff Neuman:@Michael - exactly J. Scott Evans:@Michael. Exactly. Martin Silva Valent:My concer is that if these abandonments shows an asymetry in the stakeholders, usually non.commercial are the first ones being marginsed with chilling effect when this happend Martin Silva Valent:I feel the reeview falls short in identifying this issue Martin Silva Valent:I don't know if my concner makes total sense, but is going around my head Mary Wong:@Martin, the data does not show who is not proceeding to register. Just as it doesn't show why they do. Michael R Graham:Perhaps address Public Comments on Claims Service and Matching for next time? Jeff Neuman:@Martin - that type of data is not able to be obtained Jeff Neuman:No information is or can be known about the perspective registrant, registrar, botnet, human or other animal on the other side of the request Michael R Graham:@Martin -- I'd be very concerned if good faith noncommercial applicants are being marginilized by the Claims Service. Where can I find evidence of this marginalization? Martin Silva Valent:an exact match to be a TM can be a common name or word. How do we know that tons of good fatih applicants are not being turned back? George Kirikos:Typosquatting in new gTLDs, which already get little type-in traffic, would be a very poor cybersquatting strategy, since it'd be tough to monetize, except for perhaps the largest brands (Google, Facebook, and a handful of others). Martin Silva Valent:Of course, I am also looking to see if there is strong data on this Greg Shatan:Typosquatting is also used in phishing and malware attacks. Salvador Camacho:Totally agree with Greg Shatan Greg Shatan:vv makes a very nice w.... Michael R Graham:@Martin -- My concern exactly. Without support, isn't the concern theoretical? This is the sort of data it would be essential to gather. Greg Shatan:@Martin, how do we know any good faith applicants are being turned back? Philip Corwin:Anti-Phishing WG data shows that most phishing is accomplished via hacked servers, not registered domains, and that where domains are used they generally have a nonsense name with no relation to a TM George Kirikos:THanks. J. Scott Evans:@Mary. Are you all going to circulate the slides? Mary Wong:@J. Scott, yes we will, together with the notes from the call. Maxim Alzoba (FAITID):it might be "natural fenomena ... like ICANN" George Kirikos:ICANN can audit Deloitte to see if the profit is reasonable. George Kirikos:If it shows Deloitte has an 80%+ margin, conclusions would be clear. Michael R Graham:@Phil -- Actually, phishing of online businesses is utilizing a combination of typosquatts, cybersquats, and counterfeit pages. I'd be interested in where your data can be found. Paul Tattersfield:Very good questions George Michael R Graham:@George: Good question. George Kirikos:Costs === FEES OF THE TMCH service, and the $5,000 per registrar. Philip Corwin:We don't "know "anything from this data, other than a 94% abandonment rate. Any opinions on what that number means are just educated guesses based upon certain assumptions. George Kirikos:FEES OF THE TMCH to TM HOLDERS. Maxim Alzoba (FAITID):+1 Jeff George Kirikos:(sorry for the all caps) Michael R Graham:@Phil as to abandonment data -- Agree. Jeff Neuman:@George - why are you focusing on that Jeff Neuman:I am not sure where you are going? J. Scott Evans:I J. Scott Evans:for one want to have them back in a couple of weeks. Terri Agnew:Next Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group is scheduled for Wednesday, 12 April 2017 at 16:00 UTC for 90 minutes George Kirikos:@Jeff: ICANN shouldn't be creating monopolies that price gouge. Jeff Neuman:@George - you are still referring to the TMCH or registries.....just want to make sure we are clear Poncelet Ileleji:Noted Terri George Kirikos:@Jeff: TMCH, for now. :-) Michael R Graham:+1 having them back. Jeff Neuman:@George - Thanks David McAuley (RySG):not here for all of it but what I did hear was good, thanks George Kirikos:Bye folks. Paul Tattersfield:Very informative call today - thank you for the presentation Poncelet Ileleji:Bye All Maxim Alzoba (FAITID):bye all Paul Tattersfield:bye all Philip Corwin:Noting that ICANN has monoply control on entry into the domain name business ;-) George Kirikos:(obviously I was in favour of regular tender processes for registries, too) George Kirikos:Bye.

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FOR REVIEW/DISCUSSION: Draft scoping document for Sunrise and Trademark Claims Sub Teams
by Mary Wong April 5, 2017

April 5, 2017

Dear all, Please find attached a draft scoping document for two of the three Sub Teams that are being formed to help refine the questions that will largely define the scope of our forthcoming review of the Sunrise Registration and Trademark Claims processes. This document was prepared by staff following consultation with the Working Group co-chairs, who are currently considering the preparation of a similar document for the third Sub Team (on Private Protections). Also attached is an updated Work Plan for your review, again prepared by staff based on discussions with the co-chairs, and the set of Sunrise and Claims-related Charter questions that was circulated previously. The co-chairs will explain these documents more fully during the Working Group call tomorrow, following which we will welcome Greg Rafert of the Analysis Group for a discussion of the Revised Report on the TMCH. As requested previously, please feel free to send any comments or questions on the report to this mailing list. Thanks and cheers Mary Mary Wong Senior Policy Director & Special Adviser for Strategic Policy Planning Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong(a)icann.org Telephone: +1-603-5744889

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