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

Re: [gnso-rpm-wg] 99%+ reduction in sunrise utilization rate per TLD supports EFF call for elimination of sunrise
by Nahitchevansky, Georges Aug. 12, 2017

Aug. 12, 2017

George K I stand by my earlier comments, disagree with your contentions and refer you back to the reams of prior communications between you and others regarding your unworkable landrush proposal, flowers example, and other contentions. I am assuming you stand by your points, so no need to write back. I think everyone in the working group knows your position by now. Original Message From: George Kirikos Sent: Friday, August 11, 2017 4:34 PM To: gnso-rpm-wg Subject: Re: [gnso-rpm-wg] 99%+ reduction in sunrise utilization rate per TLD supports EFF call for elimination of sunrise To reduce the number of emails, I'll respond to several recent emails in a single (long) email, with a table of contents (!) to help preview what's coming. Table of Contents ----------------- 1. Response to Georges N. 2. Response to Volker 3. Response to Paul T. 4. Response to John M. 5. Sunrise periods are discrimination 6. Response to Marc M. 7. Response to Cyntia 8. Why aren't there sunrises at the top level? 1. Georges N. wrote: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002332.html and attempted to argue that if sunrise were eliminated, there'd be "a large spike of abuse". This completely ignores the fact that the trademark holder has the option to simply pursue the domain name in the landrush instead. In other words, giving up the sunrise doesn't mean that the former users of sunrise can't obtain the domain name --- they can, under a level playing field of landrush. I outlined the exact scenarios that would exist at http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002286.html for a system without sunrise. Those are not unreasonable to trademark holders (see discussion later), especially if complemented with even more stringent requirements for landrush users (e.g. loser pays, or the other stuff discussed in April, etc.) Gucci.shoes could be registered in landrush instead. All the claimed "costs" of pursuing infringements, etc. don't materialize, because Gucci could certainly be victorious if there was any contention during the landrush period with a competing registrant for Gucci.shoes. Georges N. claims "they are not abusing the sunrise system". Many would beg to differ, when trademark holders are jumping the queue to get first dibs on dictionary words, etc. that have many competing uses. They're treating sunrises as an entitlement, but it's not a right that exists in law. ICANN repeatedly says that they only reflect existing legal rights, but instead they create *new* rights that do not exist in law. Here's an example that might be interesting. How was Flowers.delivery created on February 3, 2015? https://whois.domaintools.com/flowers.delivery by 1-800-Flowers.com? This was a domain name discussed on one of the domain industry blogs: https://www.thedomains.com/2015/09/05/google-registers-alphabet-sex-in-sunr… The same creation date as Yahoo.delivery: https://whois.domaintools.com/yahoo.delivery (presumably a sunrise?) and according to Instra, Donuts didn't launch Landrush until February 4, 2015: https://www.instra.com/en/domain-names/newgtld/delivery-domain-registration… Answer me that, please. Is that what the sunrise period (assuming it was registered in sunrise, as it appears to be) was designed for, so that 1-800-Flowers.com could apparently "beat" other competition for the Flowers.delivery domain? Oh, and of course, the TMCH is kept secret, and there's no indicator (like there was in .info/biz) in the WHOIS for sunrises that (a) a domain was registered in sunrise, and (b) which trademark was used to justify the sunrise registration. Beautiful ICANN transparency there (not!) 2. Volker's email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002333.html simply proposes new "benefits" to registry operators/registrars, i.e. GA can be sooner, a timing benefit. It doesn't address the costs/benefits equation for trademark holders and other prospective registrants who seek to register the same strings. Furthermore, it's potentially open to front-running and abuse, given attempted registrations could then be passed on to TMCH users as "someone is planning to register X". This could be used to abuse TMCH users (notices can not reflect a real registration attempt), and/or could be used to create a new "right of refusal" for trademark holders, a right that doesn't exist in law (ICANN isn't supposed to be creating new legal rights). 3. Paul T.'s email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002334.html It depends on what Paul T. is proposing, whether it's only reflecting a subset of trademark holders most at risk for abuse that could use a sunrise (which is similar to what I talked about in April when we were horsetrading, albeit I'd auction off the limited number of slots, and also make sure that it wasn't stuffed with terms that are widely used by others; so "Apple" = NO, "Paypal" = YES) In some ways, this would echo Melbourne IT's call for "High At-Risk Marks" (HARM) to be the only ones eligible for sunrise, see that proposal at: http://domainincite.com/10983-melbourne-it-scales-back-harm-proposal I'll admit I haven't read it in detail, but the summary at: https://icannwiki.org/Trademark_Clearinghouse said "Also blocked would be dictionary words from any of the UN’s six official languages." which is an important requirement that I'd need to see accepted. 4. John W. said: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002335.html that Paul T.'s proposal would be "completely unfair to small businesses, non-profits and individual brand-owners." Where is John's outrage at a sunrise period that is systematically *unfair* to legitimate prospective registrants who are *not* trademark holders? John (and others) appear to be quite vocal about "unfairness", as long as its to card-carrying members of the trademark club. Unfairness to others? Not a problem! 5. Sunrises are discrimination. Let's speak plainly here. The use of sunrise periods (a right that doesn't exist in law) is discrimination. They single out a group for disparate/special treatment. ICANN's contracts with registry operators and registrars overwhelmingly contain terms that forbid disparate treatment of registries and registrars. Yet, when it comes to disparate treatment of registrants, that discrimination is not only tolerated, but *prescribed* into policy! Registrants deserve to be treated the same as any other registrants, yet, because of lobbying by insiders (the IPC), and because there's no effective non-trademark registrants constituency within ICANN, ordinary registrants (non-trademark owners) are routinely abused and discriminated against. Now, these special privileges aren't there to support some historically "oppressed" groups, such as women, aboriginal groups, LGBT groups, various ethnic minorities, etc. Instead, they're put in place to give special rights (beyond those in law) to some of the largest and richest companies on the planet, those who already have a body of law in place to provide curative rights. They don't *need* the playing field tilted in their favour, yet they're happy to "jump the queue" when given the opportunity to do so, further advantaging them and imposing costs upon others. Jeremy's proposal isn't saying "let's now give special privileges to actually oppressed groups", but is saying "let's eliminate sunrise so that there is *equal* access for all." The same equal access and treatment that registrars and registries have obtained. [NB: I could actually see someone proposing special sunrise privileges for some actually oppressed groups --- I'm sure the IP constituency would be the first to howl, if they were then 2nd in line, instead of 1st in line] We know that discrimination has costs. e.g. even attempts to help historically oppressed groups impose costs on others, witness the lawsuit by Asian Americans against Harvard University http://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affir… whereby (they argue) they've suffered due to policies that lowered the bar for other groups (and thus raised the standard for Asians). Of course, this discrimination at ICANN isn't about correcting injustices against legally recognized oppressed groups -- it's just about money! (commercial interests!) So, how is it that registries and registrars demand equal treatment in their own contracts, yet when it comes to treatment of registrants, disparate treatment through ICANN policy is acceptable, tolerated, and *instituted* through policy?!! 6. Marc M.'s email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002336.html once again essentially repeats the mantra "a trademark is a trademark is a trademark", that it's all or nothing. If that's the case, it should be "nothing", rather than "all". Once again, Marc is unable or unwilling to single out certain classes of trademark holders for separate treatment, in order to get to a compromise. But, going back to the point above, when it comes to equal treatment of prospective registrants, it's somehow fine to discriminate, as long as that discrimination puts trademark holders at the front of the line. 7. Cyntia's email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002337.html tries to analyze the stats, but misses my point that even for those with below average registrations, the sunrises would have been even lower than the expected amount, given their size. And the whole point of sunrises was "trademark holders *need* this, to fight the scourge of cybersquatting". If you're not using something (statistically), i.e. using it far less than expected, that demonstrates you don't actually need it. The assumptions that premised the institution of the policy proved false. Thus, it's time to reverse the policy, because of the false premise (since the balance of the benefits and costs equation is now also reversed through observation, compared to expectations that had led to the policy being adopted). No one is arguing that the sunrises aren't providing a *benefit* to those who use it. i.e. the person who jumped to the front of the line obviously received a benefit! What we're saying is that the overall benefits (privatized to those using the sunrise periods) are outweighed by the costs imposed upon everybody else. [continuing with the 'jumping the queue' metaphor, the folks who didn't get a seat at all, or had to settle for a worse seat] 8. Why aren't there sunrises at the top-level?!!?? Now, here's where things get fun. ICANN explicitly rejected sunrise privileges to trademark holders at the top level! In many ways, ICANN (through IANA) is the "registry operator" of the root, setting its policies, yet no special privileges were granted to trademark holders to "jump to the front of the line" if there was contention at the top level. Why? Certainly all the same arguments that the IPC puts forth when discussing RPMs like sunrise also apply at the top level itself. All the same arguments that registry operators put forth to reject sunrises at the top level also apply to the 2nd level. Two different solutions were arrived at for top vs. 2nd level, though! (reflecting the power struggle between the various insiders at ICANN, and inconsistent analysis to similar problems; essentially, registrants are routinely thrown under the bus) There are those here who've lately chimed in with their suggestions that the sunrise at the 2nd level can be "tweaked", to fix the gaming issue. Pretend that that was true --- that would necessarily mean that such a *fix* could also be applied to sunrises at the TOP LEVEL! i.e. it's 100% hypocritical to suggest that the TLDs, and 2nd level domains should be treated differently with respect to sunrise periods for trademark holders. If there was contention at the top-level, why is the answer to the question "Should the trademark holder win?" be different than the same question applied at the 2nd level? In essence, the top-level currently has the identical "landrush" at their level that would exist if our working group eliminates sunrise period at the second-level. Trademark holders (brand owners) have no special rights to a TLD, yet are able to outbid others for it if they so desire. And they of course have recourse for abuses. Of course, the top-level has their own gaming issue, with "community" applications! Those "community applications" are akin to the gaming going on here at the 2nd level in sunrises. These demonstrate the "costs" of trying to discriminate in favour of certain prospective registrants, at either the top or 2nd level, and argue for equal treatment and a level playing field. So, here's a direct question to trademark holders and to registry operator reps (and anyone else is free to chime in). If Jeremy's proposal (to eliminate the sunrise) is rejected, that means we're as a group, saying that sunrises have been successful. Why not "share that success" (which would involve the elimination of gaming) at the top level too? Perhaps Jeremy would even consider it a "friendly" amendment to his proposal that if his proposal is rejected, that any "solution" that we arrive at for sunrises be applied to all future rounds of new TLDs at the top level? Given registry operators a "taste" of that "solution" that arrives from this hallowed working group… I hope that serves to bring in to clear focus the issues that are at stake regarding treatment trademark owners differently than other legitimate registrants/applicants… Have a nice weekend! Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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. 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99%+ reduction in sunrise utilization rate per TLD supports EFF call for elimination of sunrise
by George Kirikos Aug. 11, 2017

Aug. 11, 2017

Hi Claudio, Changing the topic to one that is more appropriate, the numbers speak for themselves, namely a greater than 99% reduction in sunrise utilization rates per TLD. Trying to reframe the issue, to look at things in aggregate can't hide that startling truth. That's the same kind of "bad math" that suggests that the new gTLD program is a "success" because there's 20+ million registrations in aggregate (despite the fact that's spread over many, many new TLDs, and that nearly all, if not all of them, individually are considered weak, with stats propped up with high counts of sub-$1 registrations, or even domains that are stuffed into the accounts of registrants of other TLDs (e.g. .xxx with NSI, or .kiwi). If you wanted to start looking at things in aggregate, consider a company like Microsoft, registrant of approximately 80,000 domain names according to DomainTools: https://whois.domaintools.com/microsoft.com or Google with 20,000: https://whois.domaintools.com/google.com and so on. i.e. the fraction of domains they're acquiring via sunrise is still a tiny proportion of their overall holdings. All that would happen, when sunrises are eliminated, is that they would shift their spending to the landrush period instead. Easy-peasy. Why not aggregate the number of unique users of the sunrise, even when across TLD? If Microsoft or Apple or Dell or Google register 2 or 3 or 10 marks each in sunrise, across most/all TLDs, that starts to look like a very narrow group of stakeholders who would be affected by its elimination (and the extent that they are affected is small, given they would just shift their demand to landrush), compared to a situation where it's many different sunrise users in different TLDs. Suppose I own an ice cream shop had sells a cone generating $X in sales per day, and I decide to launch a new flavour of that ice cream cone. That new flavour generated less than 1% of $X (i.e. a 99%+ reduction). I would call that a failure. I would call that a disaster. I would not be "declaring success" and launching 1000 more flavours each generating less than 1% of $X. So, the new talking point is the 99%+ reduction in sunrise utilization rates per TLD (no need to even mention 130 domains anymore, when one can simply talk about a 99%+ decline). As for DPML, that's essentially an attempt to privately replicate and monetize the poorly received "Globally Protected Marks List" proposal. Can't see how folks like paying for domains they can't use (i.e. it's a scaremongering purchase, buy this or someone else might get it, and once again using TMs to jump the queue), and also preventing good faith purchasers who might desire it. That's even worse than sunrise, in my opinion. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Aug 10, 2017 at 12:04 PM, claudio di gangi <ipcdigangi(a)gmail.com> wrote: > George, > > I provided a few follow-up thoughts/questions below for your consideration. > > 1. It may be more accurate to consider uptake from the perspective of how > many Sunrise registrations take place per calendar year (naturally, there is > a limited amount of funds that can be spent on these services): > > How many Sunrise registrations took place in 2008, 2009, or 2010 vs. 2015, > 2016, and 2017, etc. - do we have the yearly numbers so we can compare the > stats? > > 2. Another variable is the extent of costs that are imposed per Calendar > year, or how much is spent on Sunrise on a yearly basis? For example, I > believe the average for .sucks was several thousand (US dollars) per Sunrise > domain and from recollection, there was several thousand Sunrise > registrations, so several million dollars in social costs were imposed in > that one domain. Do we have stats on the extent of costs imposed per > calendar year so we can make the comparison? > > 3. Examine uptake from the perspective of all pre-launch defensive > registrations. In the 2012 round, some of the additional marketplace RPMs, > such as the DPML, supplemented the Sunrise service. If a brand utitlized the > DPML, they didn't use Sunrise across hundreds of gTLDs, which lowers the > observable number of pre-launch defensive registrations per TLD. Do we know > how many blocking services registrations were purchased so we can add these > numbers into the totals? > > Of course, there are many other issues that impact this type of purchasing > decision, including some that were described on the list yesterday. Hope > helpful. > > Best, > Claudio > > > > > > On Thu, Aug 10, 2017 at 7:31 AM George Kirikos <icann(a)leap.com> wrote: >> >> Jon, >> >> How can *objectively* argue that sunrise program has been a success (I >> can see how one can argue the political angle, but we're not here to >> argue politics, we're here to look at facts and evidence), when the >> data says otherwise? We know that on average a mere 130 registrations >> occur per TLD in sunrises, which means that the benefits are small, >> and one must compare those with the costs. >> >> Let's try to put 130 per TLD in perspective. I was looking for stats >> on the .eu sunrises, and perhaps others have better sources, but >> according to a Google search for ".eu sunrise period registrations >> total" one of the hits was to the book "Information Technology Law" >> (Diane Rowland et al), it stated there were 346,218 applications filed >> for 245,908 different domain names. Those numbers don't provide a >> citation, but they seem consistent with a Eurid report: >> >> >> https://eurid.eu/media/filer_public/1d/1e/1d1ef034-e097-41ad-99b1-1a0d5814f… >> >> which states (page 9) that the validation agent had validated (while >> sunrise validations were still in progress) 140,000 applications. >> >> I couldn't find the .info stats (although I did find that there were >> more than 15,000 *challenges* to sunrise registrations, see >> http://www.wipo.int/amc/en/domains/reports/info-sunrise/report/index.html, >> so the aggregate total must have been much higher ), but I did find >> the .asia ones, where there were 30,780 sunrise domain applications: >> >> >> https://www.dot.asia/asia-sunrise-completed-with-over-30000-domain-applicat… >> >> Calzone.org provided their own stats: >> >> >> http://calzone.org/tld/calzonenews/2014/03/04/rolling-average-for-tld-sunri… >> >> .xxx sunrise: 80,000 blocks (2011) >> .co sunrise: 11,000 domains (2010) >> .asia sunrise: 32,000 domains (2008) >> .mobi sunrise: 15,000 domains (2006) >> .eu sunrise: 140,000 domains (2006) >> .biz IP claims: 80,000 (2001) >> >> If new gTLDs had anywhere close to those sunrise statistics, it would >> be clear there were substantial benefits, and there would be no >> argument from me. If that was the data, anyone would be laughed at for >> trying to seriously suggest the benefits were small, given the large >> uptake. I would be on the other side, arguing that the benefits were >> obviously high. >> >> But, that *isn't* the data. We know that the numbers are very small. >> So, let's face the facts, the sunrises were a complete disaster in >> terms of uptake. That speaks directly to the "benefits" part of the >> equation. >> >> And we know what the costs were, I won't go into them again. >> >> So, again, I ask anyone to objectively attempt to argue that the new >> gTLD's sunrise policy was a success, given those disastrous figures >> compared to .eu, .xxx, .co, .asia, etc. (perhaps someone else can add >> the complete .info stats with citations, so that we have a full >> picture). >> >> Instead, the only "basis" for perpetuation of the failed policy is >> "let's not rock the boat", or "GAC members might get upset" >> essentially, rather than calling a spade a spade --- it's been an >> obvious failure. >> >> Let's do our job, look at the evidence objectively and fairly, and use >> evidence-based policymaking. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> On Thu, Aug 10, 2017 at 6:42 AM, Jon Nevett <jon(a)donuts.email> wrote: >> > I'm sorry George if my email wasn't sufficiently clear, but after >> > debating mandatory sunrises for literally 8 years of my life I think that >> > the time has come to call the debate in this round. While I would support >> > the original IRT proposal to make either sunrise or claims mandatory, I do >> > not support simply throwing out the sunrise requirement for the future. If >> > we cut that kind of a hole in the RPM "tapestry" (old timers might >> > appreciate the reference or not), then we will have to fill it somewhere >> > else. That's just the reality. I have not heard or seen any persuasive >> > evidence or comments to change the 2012 requirements on sunrise, but I have >> > seen from Kurt and others a strong rationale for keeping sunrise mandatory. >> > The point that I made about registries doing it anyway should go to the >> > concerns raised about the harms of a sunrise process -- it generally will >> > happen anyway, but registries should have the flexibility to minimize such >> > harms. I would be happy if the debate moved on the Claims where we might >> > have more alignment. >> > >> > Best, >> > >> > jon >> > >> >> On Aug 10, 2017, at 12:35 AM, George Kirikos <icann(a)leap.com> wrote: >> >> >> >> Hi folks, >> >> >> >> On Wed, Aug 9, 2017 at 7:02 PM, Nahitchevansky, Georges >> >> <ghn(a)kilpatricktownsend.com> wrote: >> >>> Can we stop this back and forth on the same issue. A number of folks >> >>> have told you they do not support a proposal to eliminate sunrise‎. So in >> >>> mind I think we know what the positions are. It is not helpful to keep >> >>> re-hashing the same points. Can we just move on to discussing possible fixes >> >>> for the limited gaming issue as a separate topic. >> >> >> >> Sometimes I have to wonder if some posts on this mailing list are some >> >> form of parody, or whether they're actually serious. You already know >> >> the answer, given the two posts earlier today: >> >> >> >> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002304.html >> >> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002307.html >> >> >> >> Arguing about "stopping this back and forth on the same issue", in >> >> light of an identical conversation must be a parody..... >> >> >> >> As for the multiple +1s later, some folks might want to re-read the >> >> message from May 5th: >> >> >> >> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-May/001949.html >> >> >> >> "In particular, if you feel compelled to send a “+1” or “Agree” >> >> message please just hit “Reply” and not “Reply All”. That way the >> >> sender of the original message will know of your support without the >> >> other 150-plus members of the WG having to take time away from their >> >> other work. >> >> >> >> We actually learned many new things today through the civil discourse, >> >> exposing more cracks in the positions of those supporting sunrises. >> >> These include two registry operator reps openly stated that a sunrise >> >> policy is "moot" or "academic", since they'd implement one even if not >> >> mandated. If anything, that demonstrates movement towards Jeremy's >> >> proposal (indifferent to it being accepted), not away from it. >> >> >> >> There's a long history of initial "majority" support for policies at >> >> ICANN evaporating as more data/evidence is collected, and as positions >> >> are more thoroughly scrutinized. >> >> >> >> Just 2 quick ones: >> >> >> >> 1. It was my analysis of the deeply flawed .biz/info/org contracts >> >> (which would have allowed tiered pricing) that got them killed, >> >> despite the father of the internet, Vint Cerf, disagreeing with the >> >> impact of that analysis: >> >> >> >> >> >> http://www.circleid.com/posts/icann_tiered_pricing_tld_biz_info_org_domain/ >> >> >> >> That analysis still rings true today, as new gTLDs exploit the >> >> unlimited pricing power that they were wrongly granted in the new gTLD >> >> program. >> >> >> >> 2. IRTP-B PDP -- >> >> https://gnso.icann.org/en/group-activities/inactive/2012/irtp-b >> >> >> >> In that PDP, I wasn't a member initially, but joined it after they >> >> made a deeply flawed proposal regarding domain transfers. Due to >> >> "group think", they came up with a ridiculous proposal called the >> >> "ETRP", which would have allowed transfers to be undone within 6 >> >> months (which would have had enormous impacts on the secondary market >> >> for domains). You can see my first substantial post to that PDP (after >> >> my initial post) at: >> >> >> >> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00301.html >> >> >> >> I even openly pointed out the "group think" >> >> >> >> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00332.html >> >> >> >> I was so sickened at being ignored (despite being right) that I even >> >> left the list: >> >> >> >> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00425.html >> >> >> >> however I continued to press the issue amongst stakeholders, and guess >> >> what?!?!? The proposal was killed! Enough outrage was expressed by the >> >> public (which I helped mobilize) in the comment period: >> >> >> >> http://forum.icann.org/lists/irtp-b-initial-report/index.html >> >> >> >> that the ETRP died on the vine. And, in that PDP, I was the *sole* >> >> voice of opposition within that group to their proposal (having joined >> >> it to expressly voice why it was flawed). >> >> >> >> Now, I don't give these examples to aggrandize myself, but to point >> >> out the historical broken processes appear to be repeating themselves, >> >> when there are serious contributors to this PDP (not just myself) that >> >> have a long track record of being right, even when it appears they're >> >> in a minority (even a minority of just one). Go see the film "12 Angry >> >> Men" as a more dramatic example. >> >> >> >> The way to put forth stronger positions is to actually back them up >> >> with facts and arguments, not just saying essentially "I'm not going >> >> to be convinced by anything you have to say, so don't bother." That's >> >> not consistent with evidence-based policymaking or even appropriate >> >> debating tactics. Indeed, it's a form of a "tell" from those whose >> >> positions are unable to withstand scrutiny, to make that sort of weak >> >> "Please, say no more" statement. >> >> >> >> So, here's some simple advice --- try putting yourself in the shoes of >> >> the other person, to see things from their point of view! You might be >> >> in a better position to see the weakness of your own arguments, or the >> >> strength of theirs, and can then make adjustments to try to get a >> >> strong consensus. Folks who've read my posts will note I've bent over >> >> backward to attempt to curb cybersquatting (they're no friend of >> >> mine), via balanced proposals. >> >> >> >> Because, at the end of the day, this PDP has to produce reports that >> >> survive wide *public* scrutiny, not just some "majority" that is >> >> participating actively in this group. History has shown us that a weak >> >> report can and will be savaged (it was kind of funny, after the ETRP >> >> was savaged by the public, the remaining PDP members came begging for >> >> my insights, which I graciously provided). [as an aside, don't expect >> >> me to do an "Atlas Shrugged" post in this PDP -- this time, I'm not in >> >> a minority of 1] >> >> >> >> I'll conclude by saying to those who are "uncomfortable" by debate -- >> >> get used to it! Accept that weak positions and analysis will be >> >> challenged. Rather than attempting to stifle those challenges, come up >> >> with stronger arguments/facts. >> >> >> >> Good night. >> >> >> >> Sincerely, >> >> >> >> George Kirikos >> >> 416-588-0269 >> >> http://www.leap.com/ >> >> _______________________________________________ >> >> 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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Action Items - GNSO Review of All RPMs in All gTLD PDP WG Call - 9 August 2017
by Amr Elsadr Aug. 11, 2017

Aug. 11, 2017

Dear Working Group Members, Apologies about the delay in delivery, but below are the action items from Wednesday’s WG call. The action items, notes, meeting materials, recordings and transcripts have all also been posted on the meeting’s wiki page here: https://community.icann.org/x/aA4hB. Thanks. Amr Action Items: 1. Staff to identify what data collection efforts will require surveys being conducted using professional assistance, and prepare a proposal to seek this assistance for conducting surveys, and share with the co-chairs prior to sharing with the WG and GNSO Council for their consideration 2. Staff to begin conducting a LexisNexis search for articles resulting from investigative reporting on domains registered during Sunrise that have been noted to have an impact on free expression, fair use, and the ability of registrants to register domains, and share results with the WG 3. Staff to identify which contracted parties are publicly traded, so that WG is aware that their annual reports should be publicly available in compliance with SEC regulations 4. Staff to identify what data is already currently available, and report this to the co-chairs on Friday – staff should begin collection of this data immediately

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FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection
by Mary Wong Aug. 10, 2017

Aug. 10, 2017

Dear all, For the Working Group call this Wednesday, please find attached a draft proposal for a possible approach and suggested methodologies toward collecting the requested data for the Sunrise RPM. As you review the draft document in preparation for the upcoming call, please note the following: * The Working Group co-chairs have not had a chance to review the draft fully; as such, the document is a staff draft that reflects what we believe may be a practicable approach in each case (including possibly combining several suggestions). Where applicable, we have also added some comments (in the second and third columns) that include questions for either the co-chairs’ or the Working Group’s decisions. * The document includes in full all the data collection suggestions that were submitted to the Working Group. * We have begun preparing a similar collated document for Trademark Claims, and have also started looking at currently available sources (e.g. ICANN’s New gTLD Startup Page) to see what staff can begin to put together for this effort. Please also note the following outstanding action items from the past few Working Group calls: * Requested as due by today: Working Group feedback on initial discussion of the Sunrise Preamble questions (from the call last week) – transcript, recording, notes and the updated Sunrise document are available at https://community.icann.org/x/vQchB. * Feedback requested: the current set of Trademark Claims Charter questions, as refined by the Working Group – please see the document dated 20 July on this wiki page: https://community.icann.org/x/c3vwAw (unless directed otherwise, staff will keep this document open for another week for comments). * Feedback requested: an updated set of Sunrise Charter questions, as refined by the Working Group and consequently updated by staff and the Sunrise Sub Team – please see the document dated 27 July on this wiki page: https://community.icann.org/x/vQchB (unless directed otherwise, staff will keep this document open for another week for comments). Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Friday, August 4, 2017 at 16:03 To: Amr Elsadr <amr.elsadr(a)icann.org>, "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: FOLLOW UP on Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017 Dear all, This message follows up on the first Action Item noted by Amr (below), i.e. staff to circulate documentation on the “proof of use” requirement. We hope the following links and notes, provided in chronological order of their publication, are helpful. April 2011: Explanatory Memorandum from ICANN noting the introduction of the “proof of use” requirement in Version 6 of the Applicant Guidebook (AGB) * This clarifies that the introduction of this element was a result of Board consideration of GAC advice that all trademarks from all jurisdictions should be treated equally; see Pages 4-7 of the Memorandum: https://archive.icann.org/en/topics/new-gtlds/trademark-protection-claims-u…. October 2011-September 2012: Discussions within the Implementation Advisory Group (IAG) * The IAG discussed methods of implementing the “proof of use” requirement, framed by the following business requirements and elements: “(1) Protect the existing legal rights of registered mark holders (2) Limit creation of new requirements affecting trademark holders (3) Ensure financial and operational feasibility (4) Avoid imposing a role for the clearinghouse that is inconsistent with the role agreed upon by the community (5) Establish a standard that is globally accessible (6) Avoid unfair prejudice in favor of or against any particular TM holder A single standard should be applicable across all jurisdictions, to avoid confusion and to provide service to users across the globe. A process that minimizes subjective reviews by the Clearinghouse will serve this goal and will also help to minimize the costs for Clearinghouse users.” * Note that Pages 31-35 of the Summary of IAG Input document includes additional comments by individual IAG members that may be helpful to our Working Group’s review of this topic: https://newgtlds.icann.org/en/about/trademark-clearinghouse/summary-iag-inp… November 2013: TMCH Guidelines updated by Deloitte * In addition to setting out examples of acceptable evidence of use, the Guidelines state that TMCH verification of samples submitted by a TM holder is to ensure that “the sample submitted is a sample that evidences an effort on behalf of the trademark holder to communicate to a consumer so that the consumer can distinguish the product or services of one from those of another” (see Pages 32-33 of the TMCH Guidelines: http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/….) * Note that if a TM agent is used to submit marks to the TMCH, the TM holder has to sign a declaration for proof of use, which provides in part that the information is “to the best of [the TM holder’s] knowledge, complete and accurate, that the trademarks set forth in this submission are currently in use in the manner set forth in the accompanying specimen, in connection with the class of goods or services specified when this submission was made” (see http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/…) September 2015: Staff Paper on RPMs, reviewing data and community input to inform the GNSO Issue Report preceding this PDP * The paper clarifies that the “proof of use” requirement is “intended to ensure that only holders of marks that demonstrate “use” are given the exclusionary right of Sunrise eligibility, in order to prevent abuses and provide equal treatment to all rights holders. This requirement is intended to benefit trademark holders in that it helps a trademark holder that has truly used its mark to identify and distinguish its products or services from others.” Pages 42 and 52 of the Paper contain a brief summary of the community input relating to how this requirement has been implemented by the TMCH: http://newgtlds.icann.org/en/reviews/rpm/rpm-review-11sep15-en.pdf. * The full text of all public comments received on the draft version of the Staff Paper can be retrieved here: https://forum.icann.org/lists/comments-rpm-review-02feb15/; those comments relevant to “proof of use” were summarized on Pages 7-10 of the Staff Summary of Public Comments: https://www.icann.org/en/system/files/files/report-comments-rpm-review-29ma…. If we may, staff would like also to take this opportunity to remind those members who have not had a chance to review the relevant historical documentation to try to do so, in particular the 2015 Staff RPM Paper linked above, as the questions and community input may be helpful in providing additional background to our Working Group’s review of each individual RPM from the 2012 New gTLD Program round. Thanks and cheers Mary From: <gnso-rpm-wg-bounces(a)icann.org> on behalf of Amr Elsadr <amr.elsadr(a)icann.org> Date: Friday, August 4, 2017 at 13:40 To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017 Dear Working Group Members, Below are the action items from the WG call on 3 August 2017. The action items, notes, meeting document, recording and transcripts have been posted to the meeting’s wiki page here: https://community.icann.org/x/vQchB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> Thanks. Amr Action Items: 1. Staff to circulate existing documentation on proof-of-use required for eligibility to participate in Sunrise Registration including documentation made available by the TMCH, in addition to comments offered by the community on the extent to which the current practice by the TMCH is, or is not consistent with the intended proof-of-use standards (presented in the staff paper reviewing the RPMs in preparation for this PDP) 2. Staff to request WG members’ feedback on the mailing list, regarding the Preamble questions about whether abuses of Sunrise registration periods have been documented by different stakeholders – WG members to submit feedback by 7 August COB

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Recordings, attendance & AC Chat from Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on 09, August 2017 17:00 UTC
by Michelle DeSmyter Aug. 9, 2017

Aug. 9, 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) PDP Working Group call held Thursday, 09 August 2017at 17:00 UTC. Attendance of the call is posted on agenda wiki page: https://community.icann.org/x/aA4hB MP3: http://audio.icann.org/gnso/gnso-rpm-review-09aug17-en.mp3<http://audio.icann.org/gnso/gnso-rpm-review-09aug17-en.mp3[mailer.samanage.…> <http://audio.icann.org/gnso/gnso-rpm-review-09aug17-en.mp3[mailer.samanage.…> Adobe Connect recording: https://participate.icann.org/p97fhhslzvg/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page:http://gnso.icann.org/en/group-activities/calendar[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Wiki page: https://community.icann.org/x/aA4hB Thank you. Kind regards, Michelle Adobe Connect chat transcript for 09 August 2017: Michelle DeSmyter:Dear All, Welcome to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP WG call on Wednesday, 09 August 2017 at 17:00 UTC. Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. On iPad today, as I wait for some couriers, so just a boring black font for me. :-( Maxim Alzoba (FAITID):Hello All Jonathan Frost:Hi Maxim George Kirikos:Welcome, Maxim. Maxim Alzoba (FAITID):I suggest we wait 5 minutes more George Kirikos:Maybe send out a reminder email? Maxim Alzoba (FAITID):so number of participants at least bigger than of that 3AM call George Kirikos:lol Paul Tattersfield:Hi Everyone George Kirikos:Hey Paul. Mary Wong:We actually had 20 participants (not counting staff) on the call last week Paul Tattersfield:Hi George, how's things in Canada, Autumn/Fall seems to be coming very eary this year - first week in August is it the same in Canada? David McAuley:has call started - just hearing periodic beeps George Kirikos:Things are pretty good. Warm but not hot. David McAuley:Thanks Mary Philip Corwin:Hello from Maine. On Adobe only. David McAuley:oops David McAuley:did anyone else lose audio? Kristine Dorrain - Amazon Registry Services:I"m on the phone bridge - no George Kirikos 2:Audio ok here. David McAuley:thanks Lori Schulman:I lost audio on the phone George Kirikos 2:(I'm on the phone bridge too) Amr Elsadr:Note that the INTA Survey results have been posted on the WG wiki here: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… David McAuley:I lost audio on phone as well - using adobe only now Lori Schulman:I have no audio on phone and none when I try to activate in Adobe. Lori Schulman:INTA is happy to work with this group to see where the study results can be appropriately applied to Sunrise, Claims and TMCH David McAuley:typist please mute George Kirikos 2:I can hear you, Lori. George Kirikos 2:(she might not be able to hear us) Mary Wong:Go ahead, Lori Lori Schulman:I can't hear anyone. Sorry for the typing Susan Payne:yes we can hear her Brian Cimbolic:just typing Maxim Alzoba (FAITID):I hear Lori David McAuley:i cannot hear Lori anymore on adobe J. Scott:ok Scott Austin:I hear her Mary Wong:Yes plesae, Lori David McAuley:now i can J. Scott:yes Maxim Alzoba (FAITID):I hear on Adobe J. Scott:thanks J. Scott:mary J. Scott:thanks lori George Kirikos 2:Can ICANN send out a press release, to ensure that public input (and provision of data) is maximized for this work? George Kirikos 2:That would help ensure that there's some outreach to those outside the "usual" circles. George Kirikos 2:(this is for all the questions, not any specific one) Mary Wong:@J Scott, that is correct - and these sources were suggested by the Sub Team/WOrking Group (i.e. not staff) Maxim Alzoba (FAITID):NOTE: regarding 3, Registries provided at least 3 examples (and since there were no letter to RySG/RrSG, should be more) George Kirikos 2:Given the issues with the most recent SurveyMonkey survey, that might be wise. Lori Schulman:I would share after INTA's experience, that even though we had expert advice, there were still some inefficiencies in the survey. Extensive beta testing is key in my opinion in terms of ferreted out bias and making sure that the answers are clear Mary Wong:Will do, J Scott George Kirikos 2:Any final survey should be circulated to the main group's mailing list, though, before it goes live, just as a final check. Kristine Dorrain - Amazon Registry Services:+1 Lori Paul Tattersfield:+1 George George Kirikos 2:Sunrise pricing could also be obtained through registrants/registrars, if registries don't cooperate. George Kirikos 2:(albeit, there'd be a markup from the wholesale price) Maxim Alzoba (FAITID):I am not sure 3 samples will be enough to approximate properly - there are different pricing ideas on the market Maxim Alzoba (FAITID):more than 3 Maxim Alzoba (FAITID):+1 Kristine, TM owners pay to Registrars George Kirikos 2:Doubtful we'd get the wholesale prices, though. Maxim Alzoba (FAITID):some Registries publish prices , some do not Maxim Alzoba (FAITID):and there is not such thing as Wholesale price George Kirikos 2:@Maxim: "wholesale" = price from registry to registrar. Maxim Alzoba (FAITID):it is under NDA mostly George Kirikos 2:"retail" = price paid by registrant/markholder to registrar. George Kirikos 2:No NDAs by registrants. George Kirikos 2:Most registrars will probably have a fixed percentage markup for sunrises, so we'd get the appropriate scale. Maxim Alzoba (FAITID):and Registries can not say Registrars the price of end-user sale (sometimes under special marketing initiative it can be set, for example particular price for end-users suring the particular period to promote domains names) George Kirikos 2:(i.e. fixed percentage within a registrar; so all sunrise prices at Markmonitor could be compared with each other, or at CSC, etc.; not compared across registrars) Kristine Dorrain - Amazon Registry Services:To Maxim's point, resellers also mark up price. Maxim Alzoba (FAITID):@George, the registrants are pure 3rd parties for Registries Kristine Dorrain - Amazon Registry Services:@Greg, you have no basis to assume registrars charge a flat percentage mark up. Maxim Alzoba (FAITID):+1 Kristine, sometimes there are special across-TLDs incentives e.t.c. George Kirikos 2:The "basis" is that most registrars use the "KISS" principle, keeping pricing models simple. Susan Payne:the trouble is not all registrars will want to give their mark up. they are likley to view it as confidential, at least insofar as their competitors are concerned. and it may vary from client to client as well. Maybe not for the retail registrars who publish pricing on their websites but a lot of them didn't participate in sunrise Philip Corwin:As registrars compete in a fairly transparent market, can we assume that inhibits exorbitant markups by any particular registrar? Maxim Alzoba (FAITID):I think we need to add a disclaimer "we assume this model to be used, and thus ..." George Kirikos 2:If the retail price of .TLD1 sunrise is twice the retail price of TLD2 sunrise, at a given registrar, it's safe to assume the wholesale costs at TLD1 are higher. Maxim Alzoba (FAITID):anyway - 3 samples is not representative enough Mary Wong:@J Scott, that is what staff is thinking we could approach it Maxim Alzoba (FAITID):@George , it is an assumption ... unfortunately marketing guys are extremely inventive and it is reflected in quite complex math equations of pricing George Kirikos 2:We don't need to ask the registrars -- can ask Apple, Dell, Microsoft, etc. (regular users of sunrise periods). They're not bound by confidentiality of what price they paid. George Kirikos 2:Just lost sound? Kristine Dorrain - Amazon Registry Services:did we lose Mary George Kirikos 2:Sound is back. George Kirikos 2:@maxim: true, it's an assumption, but it can be validated by looking at users who used MarkMonitor, CSC, etc. (i.e. across registrars, by their registranrs). Mary Wong:Adobe sound seems to be acting up; suggest people call in to the bridge if you can Maxim Alzoba (FAITID):Could we outreach to SO/ACs ? Cyntia King:really choppy audio David McAuley:audio is not the best today Greg Shatan:Bubbles Maxim Alzoba (FAITID):speed rewind buffer sound Sara Bockey (GoDaddy):audio is on fast forward Jonathan Frost:+1 Kristine Maxim Alzoba (FAITID):I hoped for online Greg Shatan:Susan sounds normal. Mary Wong:Please dial into the audio bridge Kristine Dorrain - Amazon Registry Services:I do talk fast.... :) Kristine Dorrain - Amazon Registry Services:but now Susan is fast too.... Maxim Alzoba (FAITID):timeshifting issues Kristine Dorrain - Amazon Registry Services:Audio bridge is also fast George Kirikos 2:The Buiness Constituency seems to have kept some records of sunrise prices, e.g. see blog post at: https://urldefense.proofpoint.com/v2/url?u=http-3A__domainincite.com_18651-… Greg Shatan:J Scott shaky sounding too Scott Austin:accellerated speech George Kirikos 2:Facebook.love for $8,930 Susan Payne:should we all log out and restart the meeting - this isn't workig very well? Michelle DeSmyter:It is Louise Marie Hurel:yes Kristine Dorrain - Amazon Registry Services:you just cut out again for a second. Cyntia King:Agree w/ Susan Kristine Dorrain - Amazon Registry Services:Yes, now ok Susan Payne:too fast Cyntia King:choppy Maxim Alzoba (FAITID):too fast David McAuley:yes Greg Shatan:Mary your sound went downhill fast. Paul Tattersfield:very fast here with pauses Susan Payne:no it's not better Maxim Alzoba (FAITID):could we log out , and re-log? Greg Shatan:This is a technical glitch. David McAuley:sound getting worse - hard to imagine Steve Levy:Speakers are cutting in and out and the audio is sped-up when it returns Louise Marie Hurel:No, it is difficult to follow with the audio Michelle DeSmyter:trying to resolve George Kirikos 2:Sound fine here (telephone bridge). Perhaps dial back in, if you're having troubles. Paul Tattersfield:no its very difficult to follow Philip Corwin:Yes, sounds like everyone is on amphetamines and then passing out ;-) Greg Shatan:"Under the sea..." Maxim Alzoba (FAITID):I will try to speak slowly Mary Wong:Yes Kristine Dorrain - Amazon Registry Services:you're cutting out Michelle DeSmyter:It seems there are audio issues when using the Adobe Connect room today, I am contact IT to look into this ASAP, if you are able to use your phone connection you will receive a better connection until this is resolved. I apologize for the inconvenience. Maxim Alzoba (FAITID):what makes me wonder is that high speed effect needs sound to be pre recorded ... so it could be due to trafic loss and attdmpts of the system to squeese sound into "good quality gaps" of time Paul Tattersfield:this stuff is too important to carry on like this Philip Corwin:I don't have a phone option. Audio very difficult to follow -- doublespeed, then silence Greg Shatan:On iPad just a constant choppiness. Scott Austin:+1 Maxim Maxim Alzoba (FAITID):I loose most letters in the speach.. we need to speak extremely slowly to compensate the sound effects Mary Wong:Sorry, Maxim, noted for next time, thank you Greg Shatan:Waiting to be dialed in... George Kirikos 2:Perhaps pause the call for 5 mins, to let those with audio issues dial in? George Kirikos 2:(if it's a mass problem -- audio is fine for me0 Sara Bockey:no audio after logging back in David McAuley:trying to dial back in - adobe audio in a funk today Cyntia King:Audio much better on dial-in. Thanks Michelle DeSmyter. Greg Shatan:Audio good on dial-in. Maxim Alzoba (FAITID):sound is way better on Skype to toll free +1866-692-5726 (cost 0.00 per minute) Maxim Alzoba (FAITID):so it is possible to mute on Adobe and use sound from Skype Scott Austin:Comments in article referenced by G. Kirikos comment above worth reviewing for pro and con on premium Surise pricing issue. Cyntia King:Media useful for exceptions, not rule. George Kirikos 2:Weren't the business plans of new gTLD applicants public? (might be another source of data) Lori Schulman:I gave up on Adobe audio almost an hour ago. David McAuley:I left adobe - on phone and it is ok George Kirikos 2:i.e. what they promised to ICANN, vs. what they delivered. Maxim Alzoba (FAITID):skype works Lori Schulman:sorry Paul Tattersfield:I left adobe for the phone Lori Schulman:but I love you George Kirikos 2:lol Cyntia King:Media, however, often leads public perccception so may be useful to gauge current trends. Philip Corwin:I just called in on skype. Adobe audio was useless today Jonathan Frost:@George: Much of the applications were public, but financial projections were kept confidential. Sara Bockey:not able to dial in and no audio in AC Scott Austin:Reactions to the articles in comments can be of as much value as the original article. George Kirikos 2:@Jonathan: maybe they can be aggregated/anonymized, then? George Kirikos 2:e.g. average expected number of sunrises was N, average expected price was $X; and compare to our data on actual results. George Kirikos 2:(albeit, at retail vs. wholesale) David McAuley:yes Lori Schulman:we can hear you on the phone Michelle DeSmyter:you are Amr Elsadr:Apologies..., that was me being dropped off the call. George Kirikos 2:Some of the companies (e.g. Rightside, MMX) have public financial statements, too, which might be a source of data, since they're publicly traded. George Kirikos 2:ICANN Monthly Reports George Kirikos 2:https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resour… Michelle DeSmyter:Please stand by, we are still having Adobe Connect issues and we do encourage you to dial into the phone bridge to hear the conference if you are continuing to experience audio issues. George Kirikos 2:gTLD.link is a forum focused on new gTLDs (I'm not a member of it, but there'd be some info there too, conceivably) George Kirikos 2:A search of 'sunrise' has only 36 matches, though: https://urldefense.proofpoint.com/v2/url?u=http-3A__gtld.link_search-3Fq-3D… Paul Tattersfield:data coming from gTLD.link would need to be treated with caution I think George Kirikos 2:@Paul: yes, it's just one perspective, so should be weighted accordingly. Scott Austin:But isn't the danger of over reliance on anecdotal evidence that outliers can dictate the rules of the community. George Kirikos 2:(question 12 only mentioned DNForum/Namepros, so gTLD.link is just another data point) Cyntia King:Agree, J Scott. Greg Shatan:Anecdotes need to be tested to see if they are edge cases. Maxim Alzoba (FAITID):@Greg, as I understand Registries were not against providing additional info on their cases Maxim Alzoba (FAITID):just need to know which George Kirikos 2:More work, please! [just kidding] Lori Schulman:@Greg, how do we test anecdotes? Lori Schulman:they are subjective not quantitative Maxim Alzoba (FAITID):I think it was more like - looks like, does not look like Lori Schulman:J Scott thank you for leading 2 great calls. We got a lot done in the last 2 weeks and it MUCH appreciated George Kirikos 2:Have a nice day, folks! Bye. Maxim Alzoba (FAITID):bye all Steve Levy:Speak with you all soon! Philip Corwin:BYe all Susan Payne:+1 Lori, fantastic progress J. Scott:ciao David McAuley:Thanks all, good bye Paul Tattersfield:thanks all bye Greg Shatan:Bye all Salvador Camacho:Bye!

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Re: [gnso-rpm-wg] [Ext] from Registries: Re: FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection
by Mary Wong Aug. 7, 2017

Aug. 7, 2017

Hello Brian, Maxim and everyone – thanks so much, all the feedback is much appreciated. Staff will compile input that comes in into a single document for ease of review, so please continue to provide feedback as requested by J. Scott in his email! Cheers Mary From: Maxim Alzoba <m.alzoba(a)gmail.com> Date: Monday, August 7, 2017 at 11:50 To: Mary Wong <mary.wong(a)icann.org> Cc: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org>, Jeff Neuman <jeff.neuman(a)valideus.com>, "J. Scott Evans" <jsevans(a)adobe.com> Subject: [Ext] from Registries: Re: [gnso-rpm-wg] FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection Hello Mary, please find some of the Registry answers on the Question received via RySG mail list (not all registries reps. were able to answer, and not all registries are in RySG, and some of Registries might have decided not to share(usual for situations which are in process and have not finished yet)) : The answer was: TCMH: Have abuses of the Sunrise Period been documented by Registries and Registrars? with the additional note of " (not formal violation of rules, but more about 'stretching the rules' during Sunrises), which could be shared with RPM PDP". Shared Examples 1. .rio " In the .rio sunrise we had some abuse attempts that were deflect by policy and one "grey" case that went through. - One electronics manufacturer asked its registrar to register airport.rio. We advised the registrar it wouldn't go through and they refrained from trying. Same registrant asked some other terms to be released from reserved name list, got some approved and some denied. - One shoe maker asked for ipanema.rio (famous beach in Rio) and for melissa.rio (a common women's name), and they actually went through with the registrations. ipanema.rio was declined (and they lost their money, which was 10x GA reg fee) but melissa.rio was approved. " 2. .bank & . insurance (attached PDF is relevant to the case - the letter fTLD sent to ICANN on 26 October 2015 about the issue noted. " An issue fTLD experienced with .BANK was a registrant who registered a trademark in a country that has very lenient approval rules and then using it as the basis to register a generic term as a domain name. One of the requirements fTLD has always believed should be part of ICANN's rules and thus an element of the TMCH's validation/verification process, is proof of use or bona fide use of the trademark in the jurisdiction where the trademark was granted. As a result of this situation in .BANK, fTLD modified its Name Selection Policy for .INSURANCE prior to its launch to include: Domain names must: (a) correspond to a trademark, trade name or service mark of the Applicant in bona fide use for the offering of goods or services, or provision of information, in the jurisdiction where the Applicant is licensed, approved or certified to conduct business. " The respondent did have an issue with a Sunrise registration. 3. .xn--80adxhks (IDN for .moscow) " In our case it was small company selling drills, who obtained TM equal to Russian equivalent of 'we', got into TMCH and registered мы.москва (like we.moscow but in Russian) during the Sunrise. " In this case , the "we" TM was not use as TM for selling drills or good prior to TMCH implementation. === (more in-depth info could be requested, if we find it reasonable to do so). P.s: I asked J. Scott Evans as one of the Co-Chairs and the group about the deadline, but unfortunately nobody sent me any info, so I am sending answers of few Registries now. P.P.s: Please be aware that since we did not send letter to RySG/RrSG and that the time given for answers to the question was unrealistically short , for this time of year - we can not say that Registries and Registrars do not have more items of this nature. On Aug 7, 2017, at 18:12, Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> wrote: Dear all, For the Working Group call this Wednesday, please find attached a draft proposal for a possible approach and suggested methodologies toward collecting the requested data for the Sunrise RPM. As you review the draft document in preparation for the upcoming call, please note the following: * The Working Group co-chairs have not had a chance to review the draft fully; as such, the document is a staff draft that reflects what we believe may be a practicable approach in each case (including possibly combining several suggestions). Where applicable, we have also added some comments (in the second and third columns) that include questions for either the co-chairs’ or the Working Group’s decisions. * The document includes in full all the data collection suggestions that were submitted to the Working Group. * We have begun preparing a similar collated document for Trademark Claims, and have also started looking at currently available sources (e.g. ICANN’s New gTLD Startup Page) to see what staff can begin to put together for this effort. Please also note the following outstanding action items from the past few Working Group calls: * Requested as due by today: Working Group feedback on initial discussion of the Sunrise Preamble questions (from the call last week) – transcript, recording, notes and the updated Sunrise document are available at https://community.icann.org/x/vQchB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…>. * Feedback requested: the current set of Trademark Claims Charter questions, as refined by the Working Group – please see the document dated 20 July on this wiki page: https://community.icann.org/x/c3vwAw[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> (unless directed otherwise, staff will keep this document open for another week for comments). * Feedback requested: an updated set of Sunrise Charter questions, as refined by the Working Group and consequently updated by staff and the Sunrise Sub Team – please see the document dated 27 July on this wiki page: https://community.icann.org/x/vQchB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> (unless directed otherwise, staff will keep this document open for another week for comments). Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> Date: Friday, August 4, 2017 at 16:03 To: Amr Elsadr <amr.elsadr(a)icann.org<mailto:amr.elsadr@icann.org>>, "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: FOLLOW UP on Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017 Dear all, This message follows up on the first Action Item noted by Amr (below), i.e. staff to circulate documentation on the “proof of use” requirement. We hope the following links and notes, provided in chronological order of their publication, are helpful. April 2011: Explanatory Memorandum from ICANN noting the introduction of the “proof of use” requirement in Version 6 of the Applicant Guidebook (AGB) * This clarifies that the introduction of this element was a result of Board consideration of GAC advice that all trademarks from all jurisdictions should be treated equally; see Pages 4-7 of the Memorandum: https://archive.icann.org/en/topics/new-gtlds/trademark-protection-claims-u…<https://urldefense.proofpoint.com/v2/url?u=https-3A__archive.icann.org_en_t…>. October 2011-September 2012: Discussions within the Implementation Advisory Group (IAG) * The IAG discussed methods of implementing the “proof of use” requirement, framed by the following business requirements and elements: “(1) Protect the existing legal rights of registered mark holders (2) Limit creation of new requirements affecting trademark holders (3) Ensure financial and operational feasibility (4) Avoid imposing a role for the clearinghouse that is inconsistent with the role agreed upon by the community (5) Establish a standard that is globally accessible (6) Avoid unfair prejudice in favor of or against any particular TM holder A single standard should be applicable across all jurisdictions, to avoid confusion and to provide service to users across the globe. A process that minimizes subjective reviews by the Clearinghouse will serve this goal and will also help to minimize the costs for Clearinghouse users.” * Note that Pages 31-35 of the Summary of IAG Input document includes additional comments by individual IAG members that may be helpful to our Working Group’s review of this topic: https://newgtlds.icann.org/en/about/trademark-clearinghouse/summary-iag-inp…<https://urldefense.proofpoint.com/v2/url?u=https-3A__newgtlds.icann.org_en_…> November 2013: TMCH Guidelines updated by Deloitte * In addition to setting out examples of acceptable evidence of use, the Guidelines state that TMCH verification of samples submitted by a TM holder is to ensure that “the sample submitted is a sample that evidences an effort on behalf of the trademark holder to communicate to a consumer so that the consumer can distinguish the product or services of one from those of another” (see Pages 32-33 of the TMCH Guidelines: http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/…<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.trademark-2Dclearin…>.) * Note that if a TM agent is used to submit marks to the TMCH, the TM holder has to sign a declaration for proof of use, which provides in part that the information is “to the best of [the TM holder’s] knowledge, complete and accurate, that the trademarks set forth in this submission are currently in use in the manner set forth in the accompanying specimen, in connection with the class of goods or services specified when this submission was made” (see http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/…<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.trademark-2Dclearin…>). September 2015: Staff Paper on RPMs, reviewing data and community input to inform the GNSO Issue Report preceding this PDP * The paper clarifies that the “proof of use” requirement is “intended to ensure that only holders of marks that demonstrate “use” are given the exclusionary right of Sunrise eligibility, in order to prevent abuses and provide equal treatment to all rights holders. This requirement is intended to benefit trademark holders in that it helps a trademark holder that has truly used its mark to identify and distinguish its products or services from others.” Pages 42 and 52 of the Paper contain a brief summary of the community input relating to how this requirement has been implemented by the TMCH: http://newgtlds.icann.org/en/reviews/rpm/rpm-review-11sep15-en.pdf[newgtlds…<https://urldefense.proofpoint.com/v2/url?u=http-3A__newgtlds.icann.org_en_r…>. * The full text of all public comments received on the draft version of the Staff Paper can be retrieved here: https://forum.icann.org/lists/comments-rpm-review-02feb15/[forum.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_…>; those comments relevant to “proof of use” were summarized on Pages 7-10 of the Staff Summary of Public Comments:https://www.icann.org/en/system/files/files/report-comments-rpm-re…<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_syste…>. If we may, staff would like also to take this opportunity to remind those members who have not had a chance to review the relevant historical documentation to try to do so, in particular the 2015 Staff RPM Paper linked above, as the questions and community input may be helpful in providing additional background to our Working Group’s review of each individual RPM from the 2012 New gTLD Program round. Thanks and cheers Mary From: <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Amr Elsadr <amr.elsadr(a)icann.org<mailto:amr.elsadr@icann.org>> Date: Friday, August 4, 2017 at 13:40 To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017 Dear Working Group Members, Below are the action items from the WG call on 3 August 2017. The action items, notes, meeting document, recording and transcripts have been posted to the meeting’s wiki page here: https://community.icann.org/x/vQchB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> Thanks. Amr Action Items: 1. Staff to circulate existing documentation on proof-of-use required for eligibility to participate in Sunrise Registration including documentation made available by the TMCH, in addition to comments offered by the community on the extent to which the current practice by the TMCH is, or is not consistent with the intended proof-of-use standards (presented in the staff paper reviewing the RPMs in preparation for this PDP) 2. Staff to request WG members’ feedback on the mailing list, regarding the Preamble questions about whether abuses of Sunrise registration periods have been documented by different stakeholders – WG members to submit feedback by 7 August COB _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Re: [gnso-rpm-wg] Deadline for answers about abuse in TMCH
by J. Scott Evans Aug. 7, 2017

Aug. 7, 2017

I think having some answers prior to our call Wednesday is sufficient. J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Trademarks 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans(a)adobe.com www.adobe.com On 8/4/17, 7:59 AM, "Maxim Alzoba" <m.alzoba(a)gmail.com> wrote: Hello J. Scott, When do we have a deadline for answers from Registries and Registrars, for the question TMCH : Have abuses of the Sunrise Period been documented by Registries and Registrars? P.s: to this moment we have few answers, but I hope to have more by mid-Monday UTC time. P.P.s: I am sorry for the previous e-mail (I forgot to send it from the same e-mail I use in RPM WG). Sincerely Yours, Maxim Alzoba Special projects manager, International Relations Department, FAITID m. +7 916 6761580(+whatsapp) skype oldfrogger Current UTC offset: +3.00 (.Moscow)

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FOLLOW UP on Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017
by Mary Wong Aug. 4, 2017

Aug. 4, 2017

Dear all, This message follows up on the first Action Item noted by Amr (below), i.e. staff to circulate documentation on the “proof of use” requirement. We hope the following links and notes, provided in chronological order of their publication, are helpful. April 2011: Explanatory Memorandum from ICANN noting the introduction of the “proof of use” requirement in Version 6 of the Applicant Guidebook (AGB) * This clarifies that the introduction of this element was a result of Board consideration of GAC advice that all trademarks from all jurisdictions should be treated equally; see Pages 4-7 of the Memorandum: https://archive.icann.org/en/topics/new-gtlds/trademark-protection-claims-u…. October 2011-September 2012: Discussions within the Implementation Advisory Group (IAG) * The IAG discussed methods of implementing the “proof of use” requirement, framed by the following business requirements and elements: “(1) Protect the existing legal rights of registered mark holders (2) Limit creation of new requirements affecting trademark holders (3) Ensure financial and operational feasibility (4) Avoid imposing a role for the clearinghouse that is inconsistent with the role agreed upon by the community (5) Establish a standard that is globally accessible (6) Avoid unfair prejudice in favor of or against any particular TM holder A single standard should be applicable across all jurisdictions, to avoid confusion and to provide service to users across the globe. A process that minimizes subjective reviews by the Clearinghouse will serve this goal and will also help to minimize the costs for Clearinghouse users.” * Note that Pages 31-35 of the Summary of IAG Input document includes additional comments by individual IAG members that may be helpful to our Working Group’s review of this topic: https://newgtlds.icann.org/en/about/trademark-clearinghouse/summary-iag-inp… November 2013: TMCH Guidelines updated by Deloitte * In addition to setting out examples of acceptable evidence of use, the Guidelines state that TMCH verification of samples submitted by a TM holder is to ensure that “the sample submitted is a sample that evidences an effort on behalf of the trademark holder to communicate to a consumer so that the consumer can distinguish the product or services of one from those of another” (see Pages 32-33 of the TMCH Guidelines: http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/….) * Note that if a TM agent is used to submit marks to the TMCH, the TM holder has to sign a declaration for proof of use, which provides in part that the information is “to the best of [the TM holder’s] knowledge, complete and accurate, that the trademarks set forth in this submission are currently in use in the manner set forth in the accompanying specimen, in connection with the class of goods or services specified when this submission was made” (see http://www.trademark-clearinghouse.com/sites/default/files/files/downloads/…) September 2015: Staff Paper on RPMs, reviewing data and community input to inform the GNSO Issue Report preceding this PDP * The paper clarifies that the “proof of use” requirement is “intended to ensure that only holders of marks that demonstrate “use” are given the exclusionary right of Sunrise eligibility, in order to prevent abuses and provide equal treatment to all rights holders. This requirement is intended to benefit trademark holders in that it helps a trademark holder that has truly used its mark to identify and distinguish its products or services from others.” Pages 42 and 52 of the Paper contain a brief summary of the community input relating to how this requirement has been implemented by the TMCH: http://newgtlds.icann.org/en/reviews/rpm/rpm-review-11sep15-en.pdf. * The full text of all public comments received on the draft version of the Staff Paper can be retrieved here: https://forum.icann.org/lists/comments-rpm-review-02feb15/; those comments relevant to “proof of use” were summarized on Pages 7-10 of the Staff Summary of Public Comments: https://www.icann.org/en/system/files/files/report-comments-rpm-review-29ma…. If we may, staff would like also to take this opportunity to remind those members who have not had a chance to review the relevant historical documentation to try to do so, in particular the 2015 Staff RPM Paper linked above, as the questions and community input may be helpful in providing additional background to our Working Group’s review of each individual RPM from the 2012 New gTLD Program round. Thanks and cheers Mary From: <gnso-rpm-wg-bounces(a)icann.org> on behalf of Amr Elsadr <amr.elsadr(a)icann.org> Date: Friday, August 4, 2017 at 13:40 To: "gnso-rpm-wg(a)icann.org" <gnso-rpm-wg(a)icann.org> Subject: [gnso-rpm-wg] Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017 Dear Working Group Members, Below are the action items from the WG call on 3 August 2017. The action items, notes, meeting document, recording and transcripts have been posted to the meeting’s wiki page here: https://community.icann.org/x/vQchB[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> Thanks. Amr Action Items: 1. Staff to circulate existing documentation on proof-of-use required for eligibility to participate in Sunrise Registration including documentation made available by the TMCH, in addition to comments offered by the community on the extent to which the current practice by the TMCH is, or is not consistent with the intended proof-of-use standards (presented in the staff paper reviewing the RPMs in preparation for this PDP) 2. Staff to request WG members’ feedback on the mailing list, regarding the Preamble questions about whether abuses of Sunrise registration periods have been documented by different stakeholders – WG members to submit feedback by 7 August COB

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Action Items - GNSO Review of all RPMs in all gTLDs PDP WG Call - 3 August 2017
by Amr Elsadr Aug. 4, 2017

Aug. 4, 2017

Dear Working Group Members, Below are the action items from the WG call on 3 August 2017. The action items, notes, meeting document, recording and transcripts have been posted to the meeting’s wiki page here: https://community.icann.org/x/vQchB Thanks. Amr Action Items: 1. Staff to circulate existing documentation on proof-of-use required for eligibility to participate in Sunrise Registration including documentation made available by the TMCH, in addition to comments offered by the community on the extent to which the current practice by the TMCH is, or is not consistent with the intended proof-of-use standards (presented in the staff paper reviewing the RPMs in preparation for this PDP) 2. Staff to request WG members’ feedback on the mailing list, regarding the Preamble questions about whether abuses of Sunrise registration periods have been documented by different stakeholders – WG members to submit feedback by 7 August COB

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Recordings, Attendance, AC Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on 03 August 2017 03:00 UTC
by Michelle DeSmyter Aug. 3, 2017

Aug. 3, 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) PDP Working Group call held Thursday, 03 August 2017at 03:00 UTC. Attendance of the call is posted on agenda wiki page: https://community.icann.org/x/vQchB MP3: http://audio.icann.org/gnso/gnso-rpm-review-03aug17-en.mp3 Adobe Connect recording: https://participate.icann.org/p1uab0xtj78/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page:http://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Wiki page: https://community.icann.org/x/vQchB Thank you. Kind regards, Michelle Adobe Connect chat transcript for 03 August 2017: Michelle DeSmyter:Dear All, Welcome to the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group meeting on Thursday, 03 August 2017 at 03:00 UTC. Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. Michelle DeSmyter:Hi there George! George Kirikos:Hi Michelle. How are you? Michelle DeSmyter:Very well, thank you :) Jonathan Agmon:hello George Kirikos:Welcome, Jonathan. Jonathan Agmon:Thanks :) George Kirikos:It'll be interesting to see if we get more Asia/Pacific folks on today's call, given the better time slot. Heather Forrest:Hooray Asia-Pac timezone friendly - hello everyone! Steve Levy:I'm impressed that Petter is here at this hour! Any other Euro participants today? George Kirikos:Hi Heather. George Kirikos:5 am in Sweden! David McAuley:Hello all, as a former resident of Asia-Pac region I can well understand Heather's happiness Steve Levy:You also have my admiration, George! Jonathan Agmon:I am also happy it is at 11am my time... David McAuley:Thanks Mary David McAuley:11pm here in DC Jeff Neuman:Is anyone speaking yet? George Kirikos:Thanks, Steve.... 11 pm isn't that bad. :-) David McAuley:not yet Jeff George Kirikos:(I'm not in Sweden, but Petter is) David McAuley:Mary just said a few minutes j. Scott:I am on the line. Steve Levy:Oh! I thought you were also in Sweden, George! Maxim Alzoba (FAITID):Hello all George Kirikos:Nahhh, just Toronto here. George Kirikos:Hi Maxim. Maxim Alzoba (FAITID):6 am Maxim Alzoba (FAITID):will not be able to use mic, will use chat window George Kirikos:Are we discussing these without looking at the data?? George Kirikos:(a bit puzzled here) Amr Elsadr:@George: There were no data requirements identified for the preamble question. Jeff Neuman:I will ask the same question I always ask. According to this group, what do we believe is the intended purpose of the Sunrise? Michael Flemming:For clarity, are we still commenting on the structure of the question or seeking to give answers? Mary Wong:@Michael, I believe it is to provide at least initial answers - possibly with a view to revisiting or fleshing out when we have more data or when we get to the end of this review Kristine Dorrain - Amazon Registry:+1 Jeff Maxim Alzoba (FAITID):+1 Jeff Mary Wong:@Jeff, that is one of the purposes of having this initial discussion - to get WG agreement on these fundamental questions. Greg Shatan:@George, can you point us toward the data you rely on to state that a significant percentage of sunrise registrations are the result of gaming? Also, what are you calling "gaming"? Maxim Alzoba (FAITID):NOTE: was the cost was the part of the intended purpose? George Kirikos:That assumes that the sunrise registrant is the only legitimate registrant, a false assumption for commonly used terms (like HOTELS, THE, etc.). Greg Shatan:Sunrise does not assume that at all. George Kirikos:@Greg: when there are only an avg of 130 sunrises per TLD, 10 to 20 gamed ones is a significant fraction. Greg Shatan:Where do you get the idea there are 10-20 gamed registrations on average? Maxim Alzoba (FAITID):Why do we belive that the low cost was the part of the sunrise purpose? George Kirikos:@Greg: anecdotally, from the domain blogs that have tracked all the sunrises. Maxim Alzoba (FAITID):Historically sunrises were not about low price (even before TMCH creation) Michael Flemming:My understanding is that the Sunrise Dispute resolution policy is to resolve disputes for when there is more than one application for the same domain. Maxim Alzoba (FAITID):+1 WMichael Greg Shatan:@George, links please. Also, those blogs tend not to be neutral reporters. Again, what are you calling "gaming". George Kirikos:@Greg: read the mailing list, those links have been sent before. Michael Flemming:Not necessarily to challenge the registration of a Sunrise domain by a certain applicant Heather Forrest:+1 Jeff re opportunity, not guarantee Greg Shatan:I've read every email on this list. Maxim Alzoba (FAITID):@Greg, in Russia, small company selling drills, came to TMCH with the equivalent of word "we" in russian Greg Shatan:If you want too make claims, back them up. Kristine Dorrain - Amazon Registry:From the Applicant Guidebook: The proposed SDRP must allow challenges based on at least the following fourgrounds: (i) at time the challenged domain name was registered, the registrant didnot hold a trademark registration of national effect (or regional effect) or thetrademark had not been court-validated or protected by statute or treaty; (ii) thedomain name is not identical to the mark on which the registrant based its Sunriseregistration; (iii) the trademark registration on which the registrant based its Sunriseregistration is not of national effect (or regional effect) or the trademark had notbeen court-validated or protected by statute or treaty; or (iv) the trademarkregistration on which the domain name registrant based its Sunrise registration didnot issue on or before the effective date of the Registry Agreement and was notapplied for on or before ICANN announced the applications received. Greg Shatan:Maxim, was that the trademark they used to sell drills? George Kirikos:@Greg: those claims have been backed up. I won't constantly repeat myself, when it has already been posted. Michael Flemming:Thank you Kristine. Maxim Alzoba (FAITID):no, it was one of the trademarks they used to participate in sunrises Maxim Alzoba (FAITID):they also obtained quite many domains with generic terms Greg Shatan:No need to repeat yourself, George, you can send them to me offlist. George Kirikos:@Greg: that would be repeating myself. Greg Shatan:So you're telling me and everyone for the group to go fish for your "proof." Thanks for the help. Mary Wong:If it is helpful - in the Protecting the Rights of Others Working Group that was part of the 2005-7 GNSO PDP on New gTLDs, this was the definition offered for Sunrise: "A process in which owners of Legal Rights have the opportunity toregister domain names before the Landrush process open to the public." George Kirikos:@Greg: you're saying the blogs where "THE" was discussed hasn't been posted to the mailing list already? George Kirikos:Use a search engine for your email. David McAuley:Helpful, thanks Mary Greg Shatan:George, I do. Phil Marano:It would be interesting to hear from contracted parties their views on how sunrise may mitigate legal risk or related costs, at a minimum at least potentially decreasing the number of demand letters, takedown letters, subpoenas or legal actions (without respect to the merits of those actions for the moment) by providing trademark owners some priority to defensively register domain names. Maxim Alzoba (FAITID):I can not use mic, and a contracted party j. Scott:maxim. Sorry to hear that. If you will type a statement I will read it Greg Shatan:@George, those blogs do not in any way demonstrate that 10-12 sunrise registrations were "gamed" on average. As a matter of fact, I've already refuted much of what was in those blog posts. Maxim Alzoba (FAITID):I am not sure that the cost was the part of the sunrise purpose, at least it was not in AGB. Historically Sunrises were not about low price. George Kirikos:So, Greg, you're saying there *are* blog posts, after all? And they were posted to the list? :-) And I didn't have to post them, because they already were posted on the list? :-) Maxim Alzoba (FAITID):And contracted parties (new ones) relayed on AGB and existing policies when became Applicants, and later Registries. Sara Bockey:very distorted George Kirikos:Lots of noise (perhaps turn off speaker). Rebecca L Tushnet:I'm sorry, can you slow down? Kristine Dorrain - Amazon Registry:Apologies. I struggle with being heard when I'm home. Kristine Dorrain - Amazon Registry:Yes, thanks, J. Scott. Kristine Dorrain - Amazon Registry:My point was that, to Phil, we might not get good info on *why* new gTLD registries participated because it's wasn't voluntary, even if we would have done it on our own. Kristine Dorrain - Amazon Registry:I think we can agree that the PURPOSE of sunrise was not pricing. Sunrise was primarily, as I recall, requested by the IPC. George Kirikos:Yet, when I've brought up the topic of examining the TMCH fees, folks roll their eyes......hmmmm. George Kirikos:(likely huge profits by the TMCH operator, given their monopoly) Jonathan Agmon:+1 Kristine Michael Flemming:The TMCH fees aren't necessarily as exorbitant as the individual Sunrise prices. Rebecca L Tushnet:Though it doesn't protect everyone with an interest: if you just own a hotel, you can't participate in Sunrise for HOTEL Kristine Dorrain - Amazon Registry:@George, the TMCH fees a different fee from Sunrise fees. Greg Shatan:George, I never said they didn't exist, or that they weren't posted. I thought you were referring to other blogs, since the ones you posted didn't prove your point. Kristine Dorrain - Amazon Registry:the brand owners don't like the per-domain sunrise registration fees. George Kirikos:@Greg: in your opinion. Greg Shatan:@George: and yours. George Kirikos:It seems to have proved the point in other people's views, given there's a proposal on the table to eliminate the sunrises. Michael Flemming:That was the intention of the TMCH or are we considering those together? Kristine Dorrain - Amazon Registry:To Jeff's point, not that the STI itself is binding, but as reference, this is what it says: There is a consensus3 among the members of STI that though this was not a rightsprotection mechanism, the creation of a Trademark Clearinghouse (TC) to be operatedby an arms-length contractor, would be a beneficial implementation tool for rightsprotection mechanisms, such as sunrise or TM Claims, and therefore should be includedin the New GTLD program, except as indicated below. The STI recognizes that aTrademark Clearinghouse could serve as a convenient location to store registeredtrademark information in a centralized location on behalf of trademark holders, and couldcreate efficiencies for trademark owners, as well as registries which will benefit fromhaving one centralized database from which to interact to obtain the necessarytrademark information to support its pre-launch rights protections mechanisms Greg Shatan:That's your proposal George. I'm not surprised you convinced yourself. And I question whether that is "on the table." Greg Shatan:@Rebecca, are your referring to a Sunrise for the .HOTEL gTLD? George Kirikos:@Greg: no, that's the EFF member's(Jeremy) proposal. Keep trying, you might get something correct tonight, though. Kristine Dorrain - Amazon Registry:(copy paste from PDF removes formatting, sorry) Kristine Dorrain - Amazon Registry:I believe it may actually have been Kurt Pritz's proposal. Greg Shatan:I'll take my batting average over yours. And you've made that proposal often enough. Don't be shy. Jonathan Agmon:I agree with Jeff David McAuley:low audio Justine Chew:Can't hear Steve? Kristine Dorrain - Amazon Registry:Steve, those are questions 4 and 5. :) You're getting ahead of us. Heather Forrest:Just adding some data to Jeff’s helpful historical context: Three of the four new gTLDs created in the first ‘proof of concept’ expansion round (.info, .name and .pro) that launched with a sunrise based eligibility in the sunrise period on ownership of trademark rights. The fourth, coop, used different criteria, for obvious reasons. Steve Levy:Sorry about the audio Michael Flemming:I agree with that Kristine Dorrain - Amazon Registry:And that's where Steve's reminder for balance and relative harms comes in. David McAuley:I agree with what J. Scott just said Rebecca L Tushnet:I can live with J. Scott's version, in the language of the poll Maxim Alzoba (FAITID):also making prices low will not help brand owners, those whose business is not only selling domains Greg Shatan:Also support J Scott's summary. Jonathan Agmon:I also agree with J. Scott Kristine Dorrain - Amazon Registry:Yes to both. Greg Shatan:I think price gouging is one of those unintended consequences. Greg Shatan:Though it occurred only in a small minority of gTLDs. Justine Chew:Yes, agree with J. Scott and Mary. Can we put in a reference to the AGB clauses mentioned by Kristine to the first bulleted question so we all know what "intended purpose" is once and for all. Scott Austin:+1 J.Scott. Michael Flemming:This question is merely asking "is it", we address what those cases of abuse are in later questions. Phil Marano:Agree that circumvention of sunrise through pricing can be considered an unintended effect. George Kirikos:Some of the TMs that were registered back for the .EU sunrise gaming are likely still alive, so creation date of TM isn't a good test. Jeff Neuman:Part of the problem has always been with having different systems of trademark law around the world George Kirikos:Very true, Jeff. Jeff Neuman:Not sure we culd ever solve that, but the difference between those that do substantive review and those that do not, has alays been a problem George Kirikos:What's the question? George Kirikos:Ok. Heather Forrest:Noting for everyone that Heather Costelloe is observing today Michael Flemming:I think the main issue I found was that the requirements for proof of use were different in a few cases from what the patent office would require and what the TMCH requires. Rebecca L Tushnet:Produced by Stoller? Justine Chew:Is there any way we can establish if the requirements set by TMCH with respect to proof of use is being applied consistently? George Kirikos:Sound died? j. Scott:I seem to have lost audio. Can you hear me? David McAuley:yes Kristine Dorrain - Amazon Registry:I hear you jeff George Kirikos:I can hear Jeff. Maxim Alzoba (FAITID):yes Louise Marie Hurel:yes Kristine Dorrain - Amazon Registry:Can't hear you J Scott Greg Shatan:Yes, produced by Stoller. He sent it along with his "settlement agreement," so I could sign it and send it back right away. Scott Austin:Iin addition to THE, I was also told of the abuse of the acceptance of single character trademarks, including 12578wxy, not only listed in the TMCH but verified for “Proof of Use” to trade during Sunrise Maxim Alzoba (FAITID):for example, in the Russian Federation it is not possible to get domain apple out of hands of the company which sells apples via internet (for few years) and has a TM for that Maxim Alzoba (FAITID):in the court George Kirikos:Plectrums, for the .EU sunrises. j. Scott:I am back and I hear Mary Scott Austin:Benelux was where THE was registered. Mary Wong:Thanks, J Scott - handing back over to you! George Kirikos:But, the TMCH provider was supposed to go further, i.e. the "use" requirement was supposed to correct for those differences between countries. George Kirikos:i.e. only the ones that pass the "use" test get sunrise privileges. Michael Flemming:"Do the individuals that undergo the validation of proof of use at the TMCH posess some qualification/training or do they merely follow established guidelines?" Is that a question worth asking? George Kirikos:Without the TMCH materials being public, there's no accountability as to the specimens of use, etc. George Kirikos:Proof of use does appear in the USPTO TM files, which the public can inspect. Petter Rindforth:+ Rebecca Rebecca L Tushnet:Mary I might characterize my comments differently: (1) substantive review generally is distinct from (2) specimen of use; once you require a specimen of use, though, you could also require (3) evidence of commercial use Greg Shatan:We can create accountability methods that don't rely on "outing". the database. Mary Wong:@Rebecca, noted and thanks. Jonathan Agmon:Proof of use in the Trademark registry is a concept not existing outside the US Rebecca L Tushnet:Sorry, I'm tired, but another way to say it might be: even countries w/o substantive examination generally have a use requirement at some point in the life of the TM, and we could look to a use requirement Mary Wong:All, if it helps, this is what the Explanatory Memorandum said when the proof of use requirement was introduced: "Proof of use from all registered trademark holders is intended tohelp ensure that all registered trademarks receiving the same type ofadvantage from a particular RPM are evaluated at substantially the same level.In other words, all registered trademarks are treated equally." Jonathan Agmon:@Rebecca, most do not - the trademarks are subject to cancellation/revocation if they are not used. Maxim Alzoba (FAITID):unfortunately it is not possible to distinguish business with the single model made on the stage of startup from the company trying to game the TMCH via single use items (one create, one sold, one sent to someone) Rebecca L Tushnet:Right, Jonathan, that's what I'm saying Rebecca L Tushnet:The burden of showing nonuse may differ Rebecca L Tushnet:but the point is: when someone asks, at some point you have to show use Jonathan Agmon:yes, but if there is no challenge the TM doesnt have to show use Justine Chew:What would "commercial use" mean in the context of non-profits? Just for clarity. Rebecca L Tushnet:Right, but the question is whether we can think of something that a TM owner in any jurisdiction should be able to satisfy Rebecca L Tushnet:Substantive examination, no; commercial use, possibly Phil Marano:The TMCH is already requiring appropriate minimum forms of use given the myriad methods made available to challenge any spurious sunrise registration, TMCH record, or underlying national registration. Jonathan Agmon:my view is that substantive examination should be sufficient Mary Wong:@Rebecca, it seems that your point is what the Board was trying to get at when introducing the proof of use requirement George Kirikos:Perhaps proof of use might include affidavits by N customers, e.g. N = 3, etc. George Kirikos:And those customers might be tested for gaming (e.g. if the only "sales" were to family members or relatives, that's probably fake use) Michael Flemming:Customers are already required to submit affidavits, I believe. Michael Flemming:Statement of Proof of Use Maxim Alzoba (FAITID):@George, I am not sure that repelling strartup companies is going to be an intended effect Greg Shatan:"Bona Fide" use. George Kirikos:@Michael: not customers of the TMCH provider, but customers of the TM holder (i.e. folks who bought the goods/services in question) David McAuley:Agree that proof of use needs work Kristine Dorrain - Amazon Registry:At the risk of disrupting the kumbaya moments....is there really a significant enough set of abuses to try to make the use requirement MORE stringent? Jeff Neuman:I would like to hear from the TMCH as to what standards they used George Kirikos:Yes, if the sunrise continues (I support Jeremy's proposal to simply eliminate the Sunrise, though). David McAuley:+1 @Jeff Jeff Neuman:And what evidence of abuse actually exists Kristine Dorrain - Amazon Registry:There is gaming....all the RPMs are gamed. How many gamers are we going to shut down with changes? Greg Shatan:Start-ups might get $$ from friends and family, but hopefully their sales are beyond that circle. Maxim Alzoba (FAITID):+1 Jeff Jonathan Agmon:My mike is not working Phil Marano:No, just improve the challenge mechanisms. Kristine Dorrain - Amazon Registry:I keep hearing the same 3 examples.... Michael Flemming:I agree with Jeff. I'd like to hear more about the guidelines and qualified individuals that undergo these checks. Steve Levy:I'm only seeing 5 green checks Rebecca L Tushnet:Kristine, I'll happily put the top 10 entries we know about into the hopper of examples Mary Wong:@Jeff, Deloitte has this to say about verifying use: "that evidences an effort on behalf of the trademark holder to communicate to a consumer so that the consumer can distinguish the product or services of one from those of another." Jonathan Agmon:I wanted to say that use is a delicate one Rebecca L Tushnet:That sounds more like a specimen of use/use as a TM rather than as ornamental requirement Heather Forrest:On this question (documentation of abuse) perhaps Mary can answer - was any data taken in the staff review? Kristine Dorrain - Amazon Registry:@Rebecca, I think that would help, but even 10 seems really really low. Kristine Dorrain - Amazon Registry:There has got to be a threshold for crappy behavior that it's not worth it to address... Justine Chew:Thank you, Mary, that would help answer my earlier question. George Kirikos:It's more than that, Kristine. e.g. see: https://urldefense.proofpoint.com/v2/url?u=http-3A__domainnamewire.com_2014… Scott Austin:But a should a self-serving affidavit be sufficient to overcome descriptiveness or allow a common term to be registered in the TMCH Mary Wong:@Heather, I don't believe there was a specific data collection effort other than community input, but we will check and confirm. Heather Forrest:Thanks, Mary Michael Flemming:Does abuse of the Sunrisses Period entail the premium names of trademarks by the Registry or do we cover that in another question? Rebecca L Tushnet:Remember, that's the 10 most popular--a greater effect than marks that no one ever attempts to register Heather Forrest:+1 Greg- sufficiently questionable to clarify the intended meaning Michael Flemming:I agree with Greg. We need clarification on who the audience of this is. Justine Chew:+1 Greg Jonathan Agmon:+1 Greg David McAuley:I did not catch the ambiguity that Greg did but see it now Greg Shatan:Oh, interesting. Maybe we need to ask both questions.... Michael Flemming:Ok, so we cover the premium namees aspect in question 3. So that would not qualify for abuse here. Greg Shatan:Most bona fide trademark owners are also registrants, with some having very large portfolios of registrations. Rebecca L Tushnet:Abuses of sunrise specifically? Rebecca L Tushnet:I don't remember that from the study, but I read it a way back Rebecca L Tushnet:(the INTA study) Maxim Alzoba (FAITID):if we define abuse as a violation of rules - no Greg Shatan:"preambulatory" -- excellent. George Kirikos:Are there registries/registrars on the call? Justine Chew:Right, based on Lori's reply, can leave questions are they are. Thanks, Lori. Maxim Alzoba (FAITID):I think the correct way is via RySG / RrSG Lori Schulman:You are welcome Justine. George Kirikos:Intent behind the rules, exactly. Maxim Alzoba (FAITID):but if we see it via stretchin the rules , yes Maxim Alzoba (FAITID):Could we request RySG/RrSG to send answers as Registries/Registrars ? Maxim Alzoba (FAITID):but next monday (few days) is bit unrealistic as expectation of response during summber Mary Wong:Got it, will do, J Scott Justine Chew:Abuses could mean different things to different people/groups. Someone should be examining all documented abuses to determine level . Maxim Alzoba (FAITID):@Mary , could you read out my suggestion about RySG/RrSG? Kristine Dorrain - Amazon Registry:Maxim, I suggest we just take that back to our our SG. George Kirikos:Are we doing Q1? George Kirikos:("if time permits" as per the agenda) Greg Shatan:@Justine, we do need "abuse cases." Lori Schulman:Sorry I missed most of the discussion but I am glad that I could chime in. Greg Shatan:"ab-use cases." Heather Forrest:Apologies in advance, I likely won't be able to join for the next rotation, which is in the red zone time in Tasmania. Justine Chew:@Greg, yes we do need those cases, whoever is documenting them. Kristine Dorrain - Amazon Registry:I think if people show up with abuse stories then we listen. We can decide if they are actually abuse. Jonathan Agmon:+ Heather... Heather Forrest:It's only summer in the northern hemisphere Jonathan Agmon:+1... Michael Flemming:hehee David McAuley:Good point Heather and many of us were just in Jo'burg Lori Schulman:Agree with Kristine. We should hear what people consider abuse and then determine if it is or if within bounds. Lori Schulman:Yes, it's 12:09 am here. Greg Shatan:And Winter in Australia.... George Kirikos:Why not start on Question 1, to use the final 20 mins? George Kirikos:(i.e. to keep the train going) Steve Levy:Thanks all. Speak with you next week! Jonathan Agmon:Thank you all Kristine Dorrain - Amazon Registry:Good night/morning/afternoon!! David McAuley:Thanks all, good bye Maxim Alzoba (FAITID):bye all Heather Forrest:Thanks, J Scott George Kirikos:Bye folks. Lori Schulman:Thank you J Scott for keeping the trains running Greg Shatan:UK/Europe try to go back to sleep.... Michael Flemming:Thanks Lori Schulman:ciao Greg Shatan:Night, all!

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