As I pointed out on last week's call, even if the percentage of automated registration initiations and other attempts to reverse engineer the TMCH database is quite high (say 75%) that would only reduce the 94% abandonment rate to 76% for the 25% of initiated registrations that were intended to be carried to completion. That's still damn high. Also, I don't think it's consistent to favor TM Claims Notice generation as an effective means of deterring registrations meant to constitute cybersquatting and also assert that such notices are not also likely deterring a significant number of registrations that would be entirely legitimate, especially among unsophisticated registrants with little understanding of TM law and UDRP/URS standards. That doesn't necessarily lead to a conclusion that TM Claims Notices should be terminated, but would seem to indicate we should explore practical means of reducing any deterrent effect on legitimate registrations. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet Sent: Tuesday, April 11, 2017 12:44 PM To: Kiran Malancharuvil Cc: gnso-rpm-wg@icann.org; Jon Nevett Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
From the audit report, page 8: We investigated the data for the presence of bulk downloads by searching for simultaneous downloads of more than one TMDB record by a given registrar. The vast majority of registrars making downloads of multiple TMCH trademark strings had average download sizes of fewer than five strings, with the exception of downloads by two registrars, whose average download size was larger than 20 TMCH records per download. However, we cannot be certain whether the large download sizes by these two registrars were associated with actual domain registration attempts or not. For analyses that rely on a count of registration attempts, we conduct the analysis both including and excluding these registrars. As is demonstrated in Section V, both approaches yield relatively similar results.
Rebecca Tushnet Georgetown Law 703 593 6759 On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
Rebecca,
The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.
Kiran
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:
The over 90% abandonment rate in response to matches shown in the audit strongly suggests an effect on non-trademark owners. "Some circumstantial evidence is very strong, as when you find a trout in the milk."
That was also a pretty sharp turn from "there's no evidence" to "you have all the evidence you need." Rebecca Tushnet Georgetown Law 703 593 6759
On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) <migraham@expedia.com> wrote:
George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.
Michael R.
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).
Timeline of Launch:
https://comlaude.com/news/new-gtld-updates-miami-launch-schedule
Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)
Please note that there will be no Landrush phase for this TLD.
https://whois.domaintools.com/flowers.miami
Creation Date: 2015-09-28T17:38:01Z
(registrant: 1-800-FLOWERS.COM, INC.)
NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.
Oldest WHOIS history at DomainTools is a few days later:
https://research.domaintools.com/research/whois-history/search/?q=fl owers.miami&date=2015-10-02&origin=permalink
Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com
If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:
https://whois.domaintools.com/google.miami
Creation Date: 2015-09-28T17:38:25Z
or Yahoo.miami:
https://whois.domaintools.com/yahoo.miami
Creation Date: 2015-09-28T17:38:28Z
or Adsense.miami:
https://whois.domaintools.com/adsense.miami
Creation Date: 2015-09-28T17:37:57Z
All of which were presumably registered via Sunrise.
I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)
But, 1-800-Flowers.com also owns Flowers.Yokohama
https://whois.domaintools.com/flowers.yokohama
and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z
whereas the landrush was a day later:
https://ie.godaddy.com/help/about-yokohama-domain-names-11994
"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."
Flowers.yokohama has the same creation date/time (to the exact second) as:
Google.Yokohama:
https://whois.domaintools.com/google.yokohama
Creation Date: 2014-08-05T06:40:00.0Z
or Yahoo.Yokohama
https://whois.domaintools.com/yahoo.yokohama
Creation Date: 2014-08-05T06:40:00.0Z
and these would clearly be sunrise registrations.
Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?
If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.
Or, we can open up the TMCH and see what's hiding there.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: George:
All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.
Jon
> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: > > Hello, > >> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. > > So, let me get this straight. Are you saying that if my company > went out and registered a TM in some obscure jurisdiction like > Tunisia, for the brand MATH, in the goods and services of "math > education", used that mark in the TMCH to register MATH.TLD > domains ahead of every other competitor in the math industry > during sunrise, and then redirected the resulting domains to > Math.com, that would be a "legitimate registration by a legitimate entity"? > > I think most people would say "George, you gamed the system." and rightly so. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/
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