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-sunri... 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-affirm... 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@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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