I agree with Paul.
David
David W. Maher
Public Interest Registry
Senior Vice-President – Law & Policy
+1 312 375 4849
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org]
On Behalf Of J. Scott Evans
Sent: Monday, September 26, 2016 2:26 PM
To: Paul Keating <Paul@law.es>; Phil Corwin <psc@vlaw-dc.com>; Rebecca Tushnet <rlt26@law.georgetown.edu>; Silver, Bradley <Bradley.Silver@timewarner.com>; gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] TMCH review objectives
Paul:
Respectfully, I think you are missing some of the point here. I agree the market should operate as a free market. However, using the data in the TMCH to create lists
of “premium” domains in the hope of having trademark owners pay exorbitant prices to acquire their marks is a bad faith practice that should be halted.
J Scott
J. Scott Evans | Associate
General Counsel - Trademarks, Copyright, Domains & Marketing |
Adobe
345 Park Avenue
San Jose, CA 95110
408.536.5336 (tel), 408.709.6162 (cell)
jsevans@adobe.com
From:
<gnso-rpm-wg-bounces@icann.org> on behalf of Paul Keating <Paul@law.es>
Date: Friday, September 23, 2016 at 9:04 AM
To: Phil Corwin <psc@vlaw-dc.com>, Rebecca Tushnet <rlt26@law.georgetown.edu>, "Silver, Bradley" <Bradley.Silver@timewarner.com>,
"gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org>
Subject: Re: [gnso-rpm-wg] TMCH review objectives
Phil,
In furtherance to my last email responding to Mr. Levy, even an unreasonably priced domain is not infringing. It is important that we not mix up the concepts at issue. We are discussing both
“preventative rights: and “curative rights”. The preventative rights mechanism should be severely limited because it acts as a restraint of market tendencies in the absence of actual infringement. Imposing preventative measures is akin to imposing a “prior
restraint” which (certainly in the area of speech) is disfavored as a matter of public policy. The curative rights mechanism is the 2nd tool which permits rights holders to rectify an infringement that has actually occurred.
Rights holders already have the ability to pursue legal claims against a registry who is intentionally targeting them by restricting access to domains other than by way of exorbitant pricing. The
hurdles that the rights holders must overcome to succeed on such claims are understandably high – just as they are with any other claimant faced with a similar situation in a non-domain-related situation. However, such is life. It is not our place to alter
the legal environment and create contractually-based claims that do not already exist in the law.
I believe this was the import of the comment made during the last call asking to differentiate economic costs from “rights”.
Sincerely,
Paul Raynor Keating, Esq.
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul@law.es
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From: <gnso-rpm-wg-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com>
Date: Friday, September 23, 2016 at 5:39 PM
To: Rebecca Tushnet <rlt26@law.georgetown.edu>, "Silver, Bradley" <Bradley.Silver@timewarner.com>, "gnso-rpm-wg@icann.org"
<gnso-rpm-wg@icann.org>
Subject: Re: [gnso-rpm-wg] TMCH review objectives
I believe I just addressed that question in the email I posted – if unreasonably high sunrise pricing deters a rights holder from registering a domain corresponding to a verified TM registered in the TMCH then it may be registered in the general availability period by an infringer, which in turn imposes a variety of costs on the TM owner (including those of bringing a subsequent URS, UDRP, or judicial action) and also creates the possibility of confusion and harm for the general public.
This is not to say that all Premium pricing is unreasonable, as it is generally recognized that certain words and terms have inherent additional value in the DNS context – it really requires a case by case analysis.
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet
Sent: Friday, September 23, 2016 11:10 AM
To: Silver, Bradley; gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] TMCH review objectives
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Silver, Bradley [mailto:Bradley.Silver@timewarner.com]
Sent: Friday, September 23, 2016 11:00 AM
To: Rebecca Tushnet; gnso-rpm-wg@icann.org
Subject: RE: TMCH review objectives
I would add that the question of pricing feeds into the concept of effectiveness, because if the TMCH is serving as a database for registries to target brand owners for higher pricing based on the value of their brands, then this is antithetical to the TMCH’s primary goal to provide protection for verified right holders.
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Rebecca Tushnet
Sent: Friday, September 23, 2016 10:26 AM
To: gnso-rpm-wg@icann.org
Subject: [gnso-rpm-wg] TMCH review objectives
Hello, all. On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG – and the broader question of what the purpose of our TMCH review is. There seemed to be a desire to focus on the TMCH’s effectiveness. The predicate question, then, is: effectiveness at what? Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred. If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others.
Yours,
Rebecca Tushnet
Rebecca Tushnet
Georgetown Law
703 593 6759
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