Steven, With all due respect when will ³protection² find its limits. Just because the right to use something is high does not equate with a denial of rights. Unless a domain name is subject to only one passible use (that of the brand owner) and no other uses, then it remains an asset of the registry to sell as it deems fit. If the brand owner who is only one of a number of users is unable to afford the price, such is life. AND when I say one possible use I really mean it. The name would not only have to be coined but famous. A coined term is one that was invented but history teaches that inventions are not unique. They are often repeated. A famous mark is one that transcends use and extents to completely unrelated commercial monetization. An example one of the few I can think of - would be NIKE. Lets stay focussed and reasonable please. Just because something is expensive does not equate to something that infringes. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> 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 THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: <gnso-rpm-wg-bounces@icann.org> on behalf of Steve Levy <slevy@accentlawgroup.com> Date: Friday, September 23, 2016 at 5:40 PM 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
I¹d also like to add my view that ³protection² can take a number of different forms. Stopping someone from infringing upon one¹s trademark is the most obvious one but protecting brand owners from having their trademarks held for ransom at an unreasonably high premium price is another. If, for example, [brand].TLD is priced at US$50000 as a premium domain it effectively prevents the brand owner from purchasing that domain and the website remains either non-resolved or perhaps as a registry advertisement. The public may then see this site and mistakenly believe that the brand owner has either gone out of business or is not devoting sufficient resources to promoting its brand online. Preventing this type of negative impact on the brand is another form of ³protection².
Regards, Steve
Steven M. Levy, Esq.
Accent Law Group, Inc. 301 Fulton St. Philadelphia, PA 19147
United States
Phone: +1-215-327-9094 Email: slevy@AccentLawGroup.com
Website: www.AccentLawGroup.com <http://www.accentlawgroup.com/>
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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 11:39 AM 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
TMCH¹s goal of ³protection² against what, though? How does high pricing contribute to trademark infringement? High pricing may deter purchases of domain names, no doubt, but with what result for the system overall?
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 TMCH¹s 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 TMCH¹s 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
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