Thanks for your input, Bradley and Rebecca.
Here is my personal view at this time, subject to further discussion with the other Co-Chairs and the WG members—
The TMCH is a means to an end. It is a database of trademarks meeting certain minimum levels of verified quality. While the TMCH is regarded as a RPM it provides no protection in and of itself – the protections come from two related RPMs, Sunrise Registrations and the TM Claims Notice (recognizing that certain other private protection measures, such as Donuts’ DPML, are also tied to TMCH registration).
The protection offered by Sunrise Registration is to give rights holders’ the ability to secure a domain in a new gTLD that is an exact match of their TM prior to general availability of registrations, and thereby eliminate the ability of a third party with no legitimate rights or interest to secure the same domain for infringing purposes. If that domain name has been designated as a Premium one by the registry operator then pricing can clearly have some practical impact on the availability of the protection, with the degree of impact varying with the price point.
Taking an extreme hypothetical, if initial registration of a particular Premium domain were set by the RO at $50,000 then the rights holder might naturally feel that the protection held out by the availability of Sunrise registration has been substantially diluted by the pricing, and decide that it would be prudent to wait for general availability and try to secure the domain then, or decline to register at all and simply file a URS or UDRP action if another party secures the domain and uses it for infringing purposes. And, as we know, the feeling among rights holders that Sunrise Registrations are being used to unreasonably exploit them increases when there is a very wide difference between the price set for the Sunrise period versus that in general availability, or if the Premium domain is a unique non-dictionary term associated with a company or brand.
But is pricing within the remit of our WG, and if not is it within the remit of the parallel Subsequent Procedures WG?
I will not answer the latter question because we have members and Co-Chairs of that WG participating in this one and they are quite capable of sharing their views. My own view is that it is probably not within the remit of this WG to analyze or change the “hands off” pricing policy established for the new gTLD program, which has led to a very broad spectrum of registry pricing and business models (it seems to be more of a subsequent procedures program and applicant guidebook matter, rather than a direct RPM concern) .
However, I think it may well be within the remit of this WG to analyze and comment upon the impact of certain registry’s Sunrise pricing models on the effectiveness of Sunrise Registrations as an RPM, and it may also be within the remit of this WG to recommend a system through which rights holders can register concerns about certain registry pricing practices that dilute the RPM’s effectiveness (how the RO or ICANN should respond to such concerns is a separate issue).
I hope those remarks spur some further discussion within this WG.
Best to all, Philip
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
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.
Yours,
Rebecca Tushnet
Rebecca Tushnet
Georgetown Law
703 593 6759
=================================================================
Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com
=================================================================
=================================================================
This message is the property of Time Warner Inc. and is intended only for the use of the
addressee(s) and may be legally privileged and/or confidential. If the reader of this message
is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding,
or any method of copying of this information, and/or the taking of any action in reliance on
the information herein is strictly prohibited except by the intended recipient or those to whom
he or she intentionally distributes this message. If you have received this communication in
error, please immediately notify the sender, and delete the original message and any copies
from your computer or storage system. Thank you.
=================================================================
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16