Ok than ks From: Mary Wong <mary.wong@icann.org> Date: Friday, April 21, 2017 at 1:56 PM To: Paul Keating <paul@law.es> Cc: Greg Shatan <gregshatanipc@gmail.com>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [Ext] Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
Hello and sorry for the confusion; what I'd meant to say was that we had asked for proposals that addressed the specific open questions about the TMCH (questions 7, 8, 10). Since Jeremy's seemed more general and directly addressed sunrise, staff has referred the question (of whether WG consideration of that proposal should be deferred or if it should be referred to the sunrise sub team etc) to the cochairs for their views.
Cheers Mary
Sent from a mobile phone, sorry for any errors and brevity.
On Apr 21, 2017, at 07:18, Paul Keating <Paul@law.es> wrote:
Mary,
I was also confused. Does this mean that the issue is being deferred along with the other relevant questions to which it relates?
Paul
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Date: Thursday, April 20, 2017 at 9:36 PM To: Mary Wong <mary.wong@icann.org> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
Mary,
Thanks. I'm not sure what that means, but I'll wait to see what the co-chairs say.
Greg
Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
On Thu, Apr 20, 2017 at 3:32 PM, Mary Wong <mary.wong@icann.org> wrote:
Hello Greg and everyone,
As the call for proposals was intended to solicit recommendations that address the open questions on the TMCH structure and scope (Questions 7, 8 and 10) the potential overlap with a Sunrise discussion has been noted for the co-chairs.
Cheers Mary
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Date: Thursday, April 20, 2017 at 11:47 To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
Co-chairs, all:
Before responding to the substance, isn't this a premature submission?
First, it seemed clear that we were asked to submit proposals regarding the Trademark Clearinghouse itself -- not RPMs such as Sunrise, Claims, etc.
Second, it seemed clear that the proposals should be specific to the four TMCH questions still open: 7 (TMCH handling of design marks), 8 (TMCH handling of geographical indications, protected designations/appellations of origin), 10 (retaining, modifying or expanding TMCH matching rules) and 15 (confidentiality/privacy of TMCH Database). All other TMCH questions "either been deferred for further review following the Working Group¹s discussion of Sunrise and Claims Notifications, or agreed as not requiring further discussion at this time."
I see that the proposal comes from someone who just joined the group as a member, so perhaps they were simply ignorant of the requirements. However, it's my understanding that when you join a WG midstream, you need to get familiar with the WG's prior work and you can't reopen a prior WG decision unless you have significant new information. I appreciate the "passionate intensity" that causes one to "rush in."* But I think we have enough on our hands in dealing with the proposals that are on-topic.
Also, didn't we just set up 3 subgroups for the next module of WG work -- including one to deal with Sunrise (the subject of this submission)? The subgroups' work is just beginning, while we wrap up our TMCH module. Discussing Sunrise here and now in the full WG seems to thwart our work plan.
As such, it seems that consideration of this submission needs to be deferred until the Sunrise Subgroup reports back to the WG, referred to that subgroup, withdrawn, or rejected.
If the co-chairs decide to move forward in the full WG now, I think they have to do the following as well: * Keep the proposal submission window open for another 2-3 weeks, so that other WG members can submit proposals on other Phase One topics aside from the TMCH -- Sunrise, Claims, URS, and other proposed/potential RPMs (i.e., everything but UDRP). * Suspend the work of the Subgroups so that we are not working on two tracks. * Suspend discussion of this proposal until other Sunrise proposals are received, so they can be discussed together. If the co-chairs decide to move forward on this, I'll respond on substance. But I'll hold off for now, since I don't want to clog the email list with off-topic submissions. However, if the discussion just moves forward, I'll have to jump in so I don't miss the chance to contribute to the discussion.
Expectantly,
Greg
* Note that the works of W.B. Yeats and Alexander Pope are in the public domain....
Greg Shatan C: 917-816-6428 <tel:(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428> gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
On Thu, Apr 20, 2017 at 9:55 AM, John McElwaine <john.mcelwaine@nelsonmullins.com> wrote:
In addition, I believe it is overstating the issue to assume that all domain names are protected speech. As an initial matter, U.S. courts appear to be split on this issue, and furthermore, one needs to look at the domain name to make this determination. For instance, there is a big difference in the expressive nature of <abcd.com[abcd.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__abcd.com&d=DwMFaQ&c=F mY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7 xb5cjS_7sB4h6Y&m=bCDwHJ9c8HvqajRo0dYWXiOWLHf3FIlX18-Gs2yoXSs&s=6ocrizQJyAn lqR6w17-s11PdAffAdImS8XajwYvbLws&e=> >, as compared with, <thewebsitetoprotestunfairsunriseregistrations.com[thewebsitetoprotestunfa irsunriseregistrations.com] <https://urldefense.proofpoint.com/v2/url?u=http-3A__thewebsitetoprotestun fairsunriseregistrations.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms 7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bCDwHJ9c8HvqajRo 0dYWXiOWLHf3FIlX18-Gs2yoXSs&s=_YXnlVWLLlaGShyk-9Vap70ls6nxkoWeedplm5mX_u0& e=> >.
John
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Beckham, Brian Sent: Thursday, April 20, 2017 6:39 AM To: J. Scott Evans <jsevans@adobe.com>; Paul Tattersfield <gpmgroup@gmail.com>; gnso-rpm-wg@icann.org
Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
To add support to J Scott¹s comment:
When a trademark owner pays a premium to defensively register a domain name exactly matching its trademark in a Sunrise process this does not prevent free expression; it does however protect consumers by preventing potential misrepresentation under that particular string.
In weighing the respective costs and benefits, it is difficult to see how the current system whereby one domain name is removed from circulation to prevent consumer harm / trademark abuse should be eliminated because it may prevent speech from that one particular outlet in a universe of virtually countless other available outlets.
In any event, Jeremy, this group would no doubt find any examples you may be aware of, of actual speech chilling (particularly speech that could not be undertaken elsewhere) because of a Sunrise registration, quite useful.
Finally, the claimed ³cost savings² formula below is far too simplistic; the harm that can occur e.g., through one domain name-occasioned phishing campaign alone (in the time it takes to apply the cure) could upend that entire equation many times over.
Brian
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 20, 2017 1:51 AM To: Paul Tattersfield Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
We keep hearing all these outlandish claims of the poor folks cheated out of an opportunity to express themselves or start a new business, but no real proof. I hear all the same arguments I have heard since 2009 and from the same groups with no proof. I also see no new voices claiming any of this alleged harm. What I see is a group of stakeholders with an anti-IP agenda making the same old arguments hoping to trim back consensus solutions where compromises based on these arguments have already been made.
J. Scott
Sent from my iPhone
On Apr 19, 2017, at 4:33 PM, Paul Tattersfield <gpmgroup@gmail.com> wrote:
I¹m not sure I agree. The Claims Notices are likely to have a far bigger impact on people not registering domains especially those who are not professional registrants and have not seen a claims notice before.
No Claims Notices should be issued without a substantive review of the underlying goods and services.
The idea that anyone can buy a piece of paper without any real goods or services to protect and can then use that piece of paper to discourage others from building real world businesses simply because some jurisdictions give out those pieces of paper out like confetti under the pretext of ideas they might want to do in the future¹ should be deeply frowned upon by anyone participating in ICANN. Paul
On Wed, Apr 19, 2017 at 7:56 PM, Jeremy Malcolm <jmalcolm@eff.org> wrote:
Open questions 7 and 8 illustrate how the protections provided to trademark holders through the TMCH have been applied too broadly by the provider, opening the door for gaming and abuse by trademark holders, and chilling of speech by affected third parties. This proposal also bears on question 16 (Does the scope of the TMCH and the protections mechanisms which flow from it reflect the appropriate balance between the rights of trademark holders and the rights of non-trademark registrants?).
It has been seen that the TMCH has facilitated trademark owners claiming exclusive rights in domain names that they don¹t exist in domestic trademark law, such as words incorporated into design marks. Open question 10, rather than addressing the potential for abuse, actually suggests a measure that would allow even more non-trademarked terms to be locked up by priority claimants.
As a measure to address these problems, we propose eliminating the TMCH¹s Sunrise Registration service altogether. Although we also have concerns about its Trademark Claims service and will likely propose its elimination separately at a later date, the Sunrise Registration service is the most urgent to eliminate, because it creates an absolute bar to third parties registering domains that a Sunrise registrant has already claimed, whereas the Trademark Claims service results in a warning to third parties but does not absolutely preclude them from registering.
We believe that the elimination of Sunrise Registrations would be the simplest way to address the problems of gaming and abuse that have been observed by working group members, not only in respect of design marks and geographical words, but also the misuse of dubious trademarks over common dictionary words such as ³the², ³hotel², ³luxury², ³smart², ³one², ³love², and ³flower² to lock up domains unrelated to the original trademark.
If the Sunrise Registration system were widely used by trademark holders, then it might be claimed that its elimination was disproportionatebut as we have seen, this is not the case. There have been only about 130 Sunrise Registrations per new domain. Such a small number of claims could be more simply and efficiently handled simply by allowing those claimants to resort to curative mechanisms such as the UDRP in the event that a third-party registrant beats them to registering a domain over which they might have made a claim.
The benefits of the elimination of Sunrise Registrations would be:
· An overall cost saving.
· Streamlining of the public availability of domains in new registries.
· Elimination of the potential for gaming and abuse by putative trademark holders who claim rights over domain names that do not correspond to their domestic trademark rights.
The costs would be: * Some trademark holders would be required to resort to curative proceedings if domain names over which they have a legitimate claim are registered by third parties. -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org <https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.prot ection.outlook.com_-3Furl-3Dhttps-253A-252F-252Feff.org-26data-3D02-257C0 1-257C-257C0e18d5b07aea47943d4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c17 8decee1-257C0-257C0-257C636282416004172724-26sdata-3DLCpvg6fU-252FXkpw1fm AH8KzPJDWABttoqafNYeotxdCiQ-253D-26reserved-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDO xOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1V Ak&m=0BR4m_4UuTrbwX27PjR5nOwWB8isVOX2a3mrks6Ng-0&s=k7ODBCCErf9pQH25bKUJ1_ 8D4_De4J9UwNPdpJ5tedY&e=> jmalcolm@eff.org
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