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
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 ================================================================= 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<mailto: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. =================================================================
TMCH's goal of "protection" 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 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> [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<mailto: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 ================================================================= 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<mailto: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. =================================================================
As you know, the protection mechanisms facilitated by the TMCH are the sunrise services and claim services. Targeting brand owners for higher pricing during the sunrise period inhibits trademark owners from making effective use of that particular service. You may validly ask whether the services envisaged by the TMCH are doing enough to deter infringement, but that is a different question from asking whether the services themselves are living up to their potential to provide trademark owners with a tool to assert their rights in a mark by registering a domain prior to general availability, or for the matter, during general availability when brand-targeted pricing creates an uneven playing field. From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 11:10 AM To: Silver, Bradley; gnso-rpm-wg@icann.org Subject: RE: TMCH review objectives TMCH's goal of "protection" 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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. ================================================================= ================================================================= 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<mailto: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. =================================================================
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 TMCH's goal of "protection" 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
"If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives “If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.” Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives “If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.” Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives “If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.” Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives “If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.” Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I'm not sure what you're saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn't persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
As Jeff pointed out, it's not a question of keeping prices low or high, it's about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives I'm not sure what you're saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn't persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________
I agree with Lori and Jeff. Best regards, Scott [vlp_logo][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Lori Schulman Sent: Friday, September 23, 2016 4:51 PM To: Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives As Jeff pointed out, it's not a question of keeping prices low or high, it's about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I'm not sure what you're saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn't persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
I would also add that if discriminatory pricing/premium names/reserved names schemes result in a trademark owner being effectively prohibited from exercising their rights as recognized by existing sunrise policies, that is a circumvention of rights. It may also be an incentive to infringe when brand names are offered to brands at a prohibitive cost and for non-brand-associated registrants for free. Thanks, Kiran From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Lori Schulman Sent: Friday, September 23, 2016 1:51 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives As Jeff pointed out, it's not a question of keeping prices low or high, it's about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I'm not sure what you're saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn't persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com><http://www.avg.com><http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
+ Lori & Jeff This price system raises a question on the neutrality of the system. / Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you 23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman
From:Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
Rebecca Tushnet Georgetown Law 703 593 6759
From:Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com <Kiran.Malancharuvil@markmonitor.com>] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From:Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <<Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <<lschulman@inta.org>>; Jeff Neuman <<jeff.neuman@comlaude.com>>; <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <<Kiran.Malancharuvil@markmonitor.com>> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) <http://www.markmonitor.com/>
From:Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <<lschulman@inta.org>> Cc: Kiran Malancharuvil <<Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <<jeff.neuman@comlaude.com>>; <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <<lschulman@inta.org>> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman
From:<gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf OfKiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <<jeff.neuman@comlaude.com>> Cc: <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <<jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>> <jeff.neuman@comlaude.com%3e%3e> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: <http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own...> and <http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...>
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: <jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com> <jeff.neuman@valideus.com%3e> or <jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com> <jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: <gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <<rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>> <rlt26@law.georgetown.edu%3e%3e> Cc: <gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; <gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <<psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>> <psc@vlaw-dc.com%3e%3e> wrote: 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> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <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><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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 <Bradley.Silver@timewarner.com>] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; <gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> 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> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <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><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> 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
================================================================= 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><mailto:ITServices@timewarner.com> <ITServices@timewarner.com%3e>
=================================================================
================================================================= 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 - <http://www.avg.com><http://www.avg.com> <http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - <http://www.avg.com><http://www.avg.com> <http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list <gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e>
<https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
_______________________________________________ gnso-rpm-wg mailing list <gnso-rpm-wg@icann.org>
<https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
_______________________________________________ gnso-rpm-wg mailing list <gnso-rpm-wg@icann.org>
_______________________________________________ gnso-rpm-wg mailing list <gnso-rpm-wg@icann.org> <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
Petter, I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains. If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted. I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right". I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere. Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter. Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace. Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote: Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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
================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Everyone: I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful. I. With regard to the TMCH purpose: The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries. The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent. II. With regard to pricing: A. High Sunrise pricing: The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively. The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change. It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH. B. Premium pricing of trademarked names: If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain. In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them. In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name. We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name. C. Differential pricing of domains by registrants: The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant. This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace. As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity) Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish. Best regards, Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz On Sep 26, 2016, at 7:13 AM, "Paul@law.es ZIMBRA" <paul@law.es> wrote:
Petter,
I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains.
If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted.
I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right".
I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere.
Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter.
Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace.
Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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
================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Very well written. Sincerely, Paul Keating, Esq.
On Sep 26, 2016, at 5:03 AM, Kurt Pritz <kurt@kjpritz.com> wrote:
Hi Everyone:
I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful.
I. With regard to the TMCH purpose:
The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries.
The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent.
II. With regard to pricing:
A. High Sunrise pricing:
The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively.
The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change.
It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH.
B. Premium pricing of trademarked names:
If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain.
In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them.
In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name.
We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name.
C. Differential pricing of domains by registrants:
The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant.
This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace.
As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity)
Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish.
Best regards,
Kurt
________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Sep 26, 2016, at 7:13 AM, "Paul@law.es ZIMBRA" <paul@law.es> wrote:
Petter,
I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains.
If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted.
I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right".
I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere.
Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter.
Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace.
Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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
================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
People keep saying “law” and “rights” but the truth is that there are so many disparate national (and regional and local) laws that we cannot even hope to create something that complies with all of them. I agree with Rebecca, who is asking for specifics—which law(s)? which right(s)? And then let’s decide how or whether to attempt to draft something within that framework. Ultimately, however, as Kurt said, "sites will be either: [1] infringing (and be taken down), [2] true and meaningful (where their notoriety will be deserved), or [3] non-impactful (where they will be ignored and the registries will dither in obscurity)” (numbers added). Where a site is [1], we can all agree that it should be taken down (UDRP, URS, and registry-level policies generally take care of that—if we believe that these are inadequate, let’s have that conversation). Where a site is [2], can we agree that it should not be taken down? If not, let’s have that conversation. Where a site is [3], do we need to bother with the conversation at this level? I hope not, but if there is disagreement, let’s try. We’ve been talking as though [1], [2], and [3] are no different and should be treated identically, which I think is wrong. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7
On 26 Sep 2016, at 07:09, Paul Keating <Paul@law.es> wrote:
Very well written.
Sincerely, Paul Keating, Esq.
On Sep 26, 2016, at 5:03 AM, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
Hi Everyone:
I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful.
I. With regard to the TMCH purpose:
The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries.
The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent.
II. With regard to pricing:
A. High Sunrise pricing:
The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively.
The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change.
It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH.
B. Premium pricing of trademarked names:
If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain.
In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them.
In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name.
We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name.
C. Differential pricing of domains by registrants:
The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant.
This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace.
As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com <http://kurtsucks.com/> webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity)
Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish.
Best regards,
Kurt
________________ Kurt Pritz kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz
On Sep 26, 2016, at 7:13 AM, "Paul@law.es <mailto:Paul@law.es> ZIMBRA" <paul@law.es <mailto:paul@law.es>> wrote:
Petter,
I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains.
If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted.
I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right".
I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere.
Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter.
Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace.
Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu <mailto:petter.rindforth@fenixlegal.eu>> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu <mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu <http://www.fenixlegal.eu/>
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu/> Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>>:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer. <>
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com <http://www.markmonitor.com/>
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>> <mailto:jeff.neuman@comlaude.com%3e%3e> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... <http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own...> and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... <http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...>
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>> <mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>> <mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto: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 <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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 <mailto:Bradley.Silver@timewarner.com>] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto: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 <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> 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
================================================================= 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 <mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com> <mailto:ITServices@timewarner.com%3e>
=================================================================
================================================================= 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 <http://www.avg.com/><http://www.avg.com> <http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/><http://www.avg.com> <http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Reg, Your comments are very helpful. I also would like to see any foundational basis for the various claims being made regarding the pricing. I suggest we keep in mind that a trademark holder desiring the register a domain name always retains the ability to use the curative rights process (UDRP/URS/Litigation). What we are really discussing here is whether IN ADDITION there should be some sort of pricing restrictions. I am wholeheartedly against interfering with the market which may be unfair at times. PRK From: Reg Levy <reg@mmx.co> Date: Monday, September 26, 2016 at 6:10 PM To: Paul Keating <paul@law.es> Cc: Kurt James Pritz <kurt@kjpritz.com>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
People keep saying ³law² and ³rights² but the truth is that there are so many disparate national (and regional and local) laws that we cannot even hope to create something that complies with all of them. I agree with Rebecca, who is asking for specificswhich law(s)? which right(s)? And then let¹s decide how or whether to attempt to draft something within that framework.
Ultimately, however, as Kurt said, "sites will be either: [1] infringing (and be taken down), [2] true and meaningful (where their notoriety will be deserved), or [3] non-impactful (where they will be ignored and the registries will dither in obscurity)² (numbers added).
Where a site is [1], we can all agree that it should be taken down (UDRP, URS, and registry-level policies generally take care of thatif we believe that these are inadequate, let¹s have that conversation).
Where a site is [2], can we agree that it should not be taken down? If not, let¹s have that conversation.
Where a site is [3], do we need to bother with the conversation at this level? I hope not, but if there is disagreement, let¹s try.
We¹ve been talking as though [1], [2], and [3] are no different and should be treated identically, which I think is wrong.
/R
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2
Current UTC offset: -7
On 26 Sep 2016, at 07:09, Paul Keating <Paul@law.es> wrote:
Very well written.
Sincerely, Paul Keating, Esq.
On Sep 26, 2016, at 5:03 AM, Kurt Pritz <kurt@kjpritz.com> wrote:
Hi Everyone:
I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful.
I. With regard to the TMCH purpose:
The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries.
The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent.
II. With regard to pricing:
A. High Sunrise pricing:
The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively.
The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change.
It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH.
B. Premium pricing of trademarked names:
If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain.
In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them.
In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name.
We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name.
C. Differential pricing of domains by registrants:
The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant.
This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace.
As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com <http://kurtsucks.com/> webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity)
Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish.
Best regards,
Kurt
________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Sep 26, 2016, at 7:13 AM, "Paul@law.es ZIMBRA" <paul@law.es> wrote:
Petter,
I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains.
If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted.
I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right".
I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere.
Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter.
Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace.
Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu <http://www.fenixlegal.eu/>
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu/> Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>:
As Jeff pointed out, it¹s not a question of keeping prices low or high, it¹s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I¹m not sure what you¹re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn¹t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
> > Hi Rebecca, > > > > I think it¹s fair to say that the trademark community (through INTA and > elsewhere) is basing their concerns on a full understanding of the law. > > > > Thanks, > > Kiran > > > > Kiran Malancharuvil > > Policy Counselor > > MarkMonitor > > 415.222.8318 (t) > > 415.419.9138 (m) > > www.markmonitor.com <http://www.markmonitor.com/> > > > > > > > From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] > Sent: Friday, September 23, 2016 1:26 PM > To: Lori Schulman <lschulman@inta.org> > Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff > Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org > Subject: Re: [gnso-rpm-wg] TMCH review objectives > > > > To reiterate and then I will try to stop: "deep concern" and "related to > a right granted by national law" are very different things. > > Rebecca Tushnet > > Georgetown Law > > Sent from my phone. Apologies for terseness/typos. > > > On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote: > > > I also agree with Brad and Jeff. This pricing issue is a deep concern > for INTA members. > > > Lori S. Schulman > > Senior Director, Internet Policy > > International Trademark Association (INTA) > > +1-202-704-0408, Skype: lsschulman > > > From:gnso-rpm-wg-bounces@icann.org > [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil > via gnso-rpm-wg > Sent: Friday, September 23, 2016 3:31 PM > To: Jeff Neuman <jeff.neuman@comlaude.com> > Cc: gnso-rpm-wg@icann.org > Subject: Re: [gnso-rpm-wg] TMCH review objectives > > > > Agree with Jeff and Bradley below. > > Kiran Malancharuvil > Policy Counselor > MarkMonitor > 415-419-9138 (m) > > Sent from my mobile, please excuse any typos. > > On Sep 23, 2016, at 10:00 AM, Jeff Neuman > <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> > <mailto:jeff.neuman@comlaude.com%3e%3e> wrote: > > We also need to look at examples out there where it is not just premium > pricing of domains, but there was at least one case (.feedback) that > said if you are a trademark owner (whether or not purchased in the > Sunrise or after), the price is $X, but if you are not the trademark > owner, then your price is $Y, where $Y was thousands of dollars less. > > See: > http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark > -owners-nuts-all-over-again and > http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-duri > ng-sunrise > > I believe the policies of .sucks and .feedback need to be discussed. It > is one thing to have premium pricing on a name whereby any purchaser of > the name would have to pay the same price (even if high); but, it is > another thing to have different prices for a name depending on who the > purchaser is (discrimination amongst purchasers). That I do believe is > in our scope. > > Jeffrey J. Neuman > Senior Vice President |Valideus USA | Com Laude USA > 1751 Pinnacle Drive, Suite 600 > Mclean, VA 22102, United States > E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> > <mailto:jeff.neuman@valideus.com%3e> or > jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> > <mailto:jeff.neuman@comlaude.com%3e> > T: +1.703.635.7514 > M: +1.202.549.5079 > @Jintlaw > > > From: > gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> > <mailto:gnso-rpm-wg-bounces@icann.org%3e> > [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin > Sent: Friday, September 23, 2016 12:20 PM > To: Rebecca Tushnet > <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> > <mailto:rlt26@law.georgetown.edu%3e%3e> > Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > Subject: Re: [gnso-rpm-wg] TMCH review objectives > > ³If post-Sunrise registrations of expensive domain names have led to > infringement, I hope we will be able to collect evidence of that.² > > Agreed that we should seek this type of data, certainly anecdotal and > more comprehensive if available. > > 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] > Sent: Friday, September 23, 2016 12:16 PM > To: Phil Corwin > Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > Subject: Re: TMCH review objectives > > And is the additional system cost (one component of effectiveness) of > individualized review of pricing worth this hypothetical increased risk > of later infringement? If post-Sunrise registrations of expensive domain > names have led to infringement, I hope we will be able to collect > evidence of that. Likewise with the hypothetical effect of encountering > an unregistered domain in a new gTLD. In an age of search engines, I > thought we had gotten past the idea that a consumer would type in a > domain name and then give up if no website, or a nonconfusing but > non-trademark owner website, resolves. I also highly doubt there's > evidence that consumers think less of a trademark owner for not > registering every variation. > > Rebecca Tushnet > Georgetown Law > > Sent from my phone. Apologies for terseness/typos. > > On Sep 23, 2016, at 11:39 AM, Phil Corwin > <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> <mailto:psc@vlaw-dc.com%3e%3e> > wrote: > 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> > <mailto:gnso-rpm-wg-bounces@icann.org%3e> > [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<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > 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<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > 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> > <mailto:gnso-rpm-wg-bounces@icann.org%3e> > [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<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > 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 > > 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<mailto:ITServices@timewarner.com> > <mailto:ITServices@timewarner.com%3e> > > ================================================================= > > ================================================================= > 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 <http://www.avg.com/> <http://www.avg.com> > <http://www.avg.com%3e/> > Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: > 09/23/16 > ________________________________ > No virus found in this message. > Checked by AVG - www.avg.com <http://www.avg.com/> <http://www.avg.com> > <http://www.avg.com%3e/> > Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: > 09/23/16 > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> > <mailto:gnso-rpm-wg@icann.org%3e> > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > > > > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Reg, Are we expected to recreate the wheel in the context of this working group? Further, is this the stage in which we are expected to perform potentially complex legal analysis, or are we just putting issues on the table? (Genuine question, I thought the latter, but I’m starting to wonder if perhaps people are expecting the former.) Tons of legal analysis went into developing the TMCH in the first place. I don’t think anyone saying “law” and “rights” is making this stuff up, we are just saying that the legal rights recognized by the ICANN community when these policies were developed may require further analysis to see if premium/reserved and exorbitant (or at the very least not cost-recovery) sunrise fee schemes circumvent those rights. Thanks, Kiran From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: Monday, September 26, 2016 9:11 AM To: Paul Keating <Paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives People keep saying “law” and “rights” but the truth is that there are so many disparate national (and regional and local) laws that we cannot even hope to create something that complies with all of them. I agree with Rebecca, who is asking for specifics—which law(s)? which right(s)? And then let’s decide how or whether to attempt to draft something within that framework. Ultimately, however, as Kurt said, "sites will be either: [1] infringing (and be taken down), [2] true and meaningful (where their notoriety will be deserved), or [3] non-impactful (where they will be ignored and the registries will dither in obscurity)” (numbers added). Where a site is [1], we can all agree that it should be taken down (UDRP, URS, and registry-level policies generally take care of that—if we believe that these are inadequate, let’s have that conversation). Where a site is [2], can we agree that it should not be taken down? If not, let’s have that conversation. Where a site is [3], do we need to bother with the conversation at this level? I hope not, but if there is disagreement, let’s try. We’ve been talking as though [1], [2], and [3] are no different and should be treated identically, which I think is wrong. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 26 Sep 2016, at 07:09, Paul Keating <Paul@law.es<mailto:Paul@law.es>> wrote: Very well written. Sincerely, Paul Keating, Esq. On Sep 26, 2016, at 5:03 AM, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: Hi Everyone: I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful. I. With regard to the TMCH purpose: The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries. The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent. II. With regard to pricing: A. High Sunrise pricing: The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively. The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change. It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH. B. Premium pricing of trademarked names: If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain. In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them. In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name. We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name. C. Differential pricing of domains by registrants: The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant. This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace. As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com<http://kurtsucks.com/> webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity) Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish. Best regards, Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Sep 26, 2016, at 7:13 AM, "Paul@law.es<mailto:Paul@law.es> ZIMBRA" <paul@law.es<mailto:paul@law.es>> wrote: Petter, I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains. If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted. I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right". I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere. Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter. Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace. Paul Keating On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> wrote: + Lori & Jeff This price system raises a question on the neutrality of the system. / Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu/> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu/> Thank you 23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>: As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives “If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.” Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH’s goal of “protection” 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com/><http://www.avg.com><http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/><http://www.avg.com><http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Kurt, Can you clarify your point (B)(2) below: "a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name."? How can a high sunrise price effectively discourage rights-infringing registrants from obtaining the name if they would be otherwise ineligible to register in Sunrise? Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Sunday, September 25, 2016 8:02 PM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives Hi Everyone: I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful. I. With regard to the TMCH purpose: The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries. The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent. II. With regard to pricing: A. High Sunrise pricing: The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively. The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change. It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH. B. Premium pricing of trademarked names: If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain. In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them. In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name. We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name. C. Differential pricing of domains by registrants: The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant. This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace. As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com<http://kurtsucks.com> webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity) Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish. Best regards, Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Sep 26, 2016, at 7:13 AM, "Paul@law.es<mailto:Paul@law.es> ZIMBRA" <paul@law.es<mailto:paul@law.es>> wrote: Petter, I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains. If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted. I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right". I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere. Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter. Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace. Paul Keating On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu>> wrote: + Lori & Jeff This price system raises a question on the neutrality of the system. / Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu<mailto:petter.rindforth@fenixlegal.eu> www.fenixlegal.eu<http://www.fenixlegal.eu/> NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu<http://www.fenixlegal.eu/> Thank you 23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>: As Jeff pointed out, it's not a question of keeping prices low or high, it's about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I'm not sure what you're saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn't persuasively articulated, then I think that would give us an answer. Rebecca Tushnet Georgetown Law 703 593 6759 From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] TMCH review objectives I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it. Thanks, Kiran From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> Cc: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives I would then like that understanding of the law to be articulated, because I don't see it. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>> wrote: Hi Rebecca, I think it's fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law. Thanks, Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com<http://www.markmonitor.com/> From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com<mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org<mailto:lschulman@inta.org>> wrote: I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members. Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives Agree with Jeff and Bradley below. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>><mailto:jeff.neuman@comlaude.com%3e%3e> wrote: We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less. See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s... I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>><mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives "If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that." Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available. 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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation. Rebecca Tushnet Georgetown Law Sent from my phone. Apologies for terseness/typos. On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>><mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives TMCH's goal of "protection" 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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org%3e> [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<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> 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 ================================================================= 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<mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com%3e> ================================================================= ================================================================= 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<http://www.avg.com/><http://www.avg.com><http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/><http://www.avg.com><http://www.avg.com%3e/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Kiran: I probably could have stated that better. If I understand your question: point B(2) is under the heading of "Premium Pricing of Trademarked Names." This is the scenario where the registry will typically identify common dictionary words and price them at a premium, including those that are trademarked. If I understand it correctly, those premium prices apply in the Sunrise period also. So, what I was trying to say was that the trademark owner will take a pass during Sunrise because of the premium pricing and then the infringer will take a pass at general availability because they do not want to invest a lot in a name that they are likely to lose via URS, UDRP, etc. Conversely, a party investing in a premium name is likely to not engage in infringing behavior because they do not want to lose the name. I hope tho sis helpful. Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz On Sep 27, 2016, at 5:35 AM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
Hi Kurt,
Can you clarify your point (B)(2) below: “a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name.”? How can a high sunrise price effectively discourage rights-infringing registrants from obtaining the name if they would be otherwise ineligible to register in Sunrise?
Thanks,
Kiran
Kiran Malancharuvil Policy Counselor MarkMonitor 415.222.8318 (t) 415.419.9138 (m) www.markmonitor.com
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kurt Pritz Sent: Sunday, September 25, 2016 8:02 PM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
Hi Everyone:
I am sorry to be joining this line of conversation so late. Here is some perspective that I hope you find helpful.
I. With regard to the TMCH purpose:
The purpose of the TMCH is to create efficiencies and reduce costs to trademark owners. Prior to this latest TLD round each new TLD registry (that were dribbling out at the rate of a couple a year) conducted a Sunrise period or a Claims period. Each TLD registry had it's own set of rules for registering marks, and Sunrise or Claims prices administrations. The TMCH was developed to give trademark owners a one-stop shop for registering marks for all TLD registries and one set of rules for the Sunrise and Claims processes - so that they did not have to follow the registration and administration processes for 1000+ new TLD registries.
The TMCH was to develop one uniform set of Sunrise and Claims processes but not to make significant improvements on the processes that preceded them, just make it consistent.
II. With regard to pricing:
A. High Sunrise pricing:
The TMCH, as originally designed by the Implementation Recommendation Team and approved by the STI (I cannot remember what "STI" stood for), made it a choice for registry operators to offer Sunrise or Claims. This was to repeat the current and historical practice where each new TLD registry offered one or the other. Offering the option makes a lot of sense, especially in a regime where there are no price controls. I.e., a registry cannot be forced to offer a Sunrise, because it could just price the Sunrise names prohibitively.
The GAC did not consider this common sense approach (or did not understand the ramifications) when it changed the IRT recommendation and insisted that new TLD registries be required to offer both Sunrise and Claims. The ICANN Board accepted the GAC model and the rest of the community, anxious to get on with the long delayed round, accepted the GAC-recommended change.
It is my opinion that we should not be too upset at a few registry operators charging high Sunrise prices. This was a foreseeable outcome of the requirement that registry operators offer both Claims and Sunrise. Even if a registry operator offers high Sunrise prices, they still offer the Claims period, which meets the original objective of the IRT in fashioning the TMCH.
B. Premium pricing of trademarked names:
If we focus on potential abusive behavior, rather than the ease with which a trademark owner can register its trademarked name in a TLD registry, there is less of a concern for trademark owners in this area. The higher a domain name is priced (as with a premium name), the less likely the domain holder is to engage in abusive behavior. That is because those that engage in infringing behavior are likely to lose their domain name through URS, UDRP or some other mechanism. That is why they purchase cheaper names that they do not mind losing. If a registrant purchases a domain of $X0,000, they are likely to avoid conduct that might lead to them losing the domain.
In many cases, the trademark owner might be pleased at the premium price because the trademark owner need not to register the name defensively in order to prevent infringing behavior by others. The price of the domain name does that for them.
In the case of a name that the trademark owner wants to register the name in a new TLD registry but it is priced at a high premium, well that is what markets are about. The name should go to the party that values the name more highly so long as that party has a legitimate right and use of the name.
We are concerned with abuse. I think that two ways that abuse will be naturally limited are: (1) a low Sunrise price that the trademark owner will willingly pay, and (2) a high Sunrise price (i.e., a Premium name price) that will effectively discourage rights-infringing registrants from obtaining the name.
C. Differential pricing of domains by registrants:
The examples of .feedback and .sucks is a lot trickier and might merit discussion. My understanding of those two registries is that they have carefully crafted registration criteria that comply with the ICANN rules and, at the same time, enables them to charge different prices based upon the registrant.
This group might consider providing policy advice to ICANN in attempt to close the sort of registration practices that .feedback and .sucks have implemented. In practice, this is likely to be difficult to do and result in unnecessary restricting the marketplace.
As admittedly a laissez-faire sort of guy, I believe we should look at whether the operation of either of these two (or other similarly-situated) registries have caused any deleterious effects and if their impact is beyond that achieved by any other such sites. E.g., is there a kurt.sucks domain that is more infringing and more impactful than the equivalent kurtsucks.com webpage? To me, these sites will be either: infringing (and be taken down), true and meaningful (where their notoriety will be deserved), or non-impactful (where they will be ignored and the registries will dither in obscurity)
Sorry for taking so long to say this. I hope you found it useful. I can elaborate if you wish.
Best regards,
Kurt
________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Sep 26, 2016, at 7:13 AM, "Paul@law.es ZIMBRA" <paul@law.es> wrote:
Petter,
I'm not sure I understand. Are you referring to the pricing system of the TMCH or the registries via their pricing of sunrise/premium domains.
If the reference is to the pricing by registries, I am not sure I understand the logic behind a demand that the pricing be neutral. I fully understand the frustration at being faced,with a high price but I don't see that any legal right has been impacted.
I have read various comments about "the law" and that high pricing is tantamount to interference with the exercise of a right. However, I have not seen any reference to the actual "law" being referenced or an argument as to how exorbitant pricing amounts to interference with any "right".
I don't see how restrictions on TMCH data would be useful. It seems to me that the information from TMCH is publicly available from other sources. Thus, aside from perhaps the benefit of knowing that a trademark owner was "interested" in domains (as a result of having registered with the TMCH) And receiving the data in a user-friendly format, don't see how restricting use of TMCH data would,resolve the asserted problem. The registries would simply obtain the data elsewhere.
Nor have I seen empirical evidence that such pricing (a) resulted in the trademark owner not registering the relevant domain AND (b) that the same domain was registered and used in bad faith or in an infringing manner. While some trademark holders may have paid the price, I would think they saw sufficient value to justify their registration as opposed to (a) the risk another legitimate trademark holder obtaining the domain or (b) later reliance upon curative rights (UDRP/URS/litigation) in the event it was registered by a cyber squatter.
Let's not forget here that the "value" proposition present in the high price reflects not only the value of "preventing" potential cyber squatting but also the right to preclude BOTH competing registered and coo on law trademark holders (I.e. those having rights as to different classes of goods/services) from obtaining the same domain. And, of course this value proposition is played out on a global scale and not a micro economic scale involving a relatively few registered trademark rights holders. Given the above I am not prepared to substitute my subjective views on what is "reasonable" for those of the marketplace.
Paul Keating
On 25 Sep 2016, at 1:00 PM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
+ Lori & Jeff
This price system raises a question on the neutrality of the system.
/ Petter
-- Petter Rindforth, LL M
Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth@fenixlegal.eu www.fenixlegal.eu
NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you
23 september 2016 22:50:33 +02:00, skrev Lori Schulman <lschulman@inta.org>: As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 4:42 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] Sent: Friday, September 23, 2016 4:37 PM To: Rebecca Tushnet Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org Subject: RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:35 PM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
Kiran Malancharuvil
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com
From: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 1:26 PM To: Lori Schulman <lschulman@inta.org> Cc: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
International Trademark Association (INTA)
+1-202-704-0408, Skype: lsschulman
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Kiran Malancharuvil via gnso-rpm-wg Sent: Friday, September 23, 2016 3:31 PM To: Jeff Neuman <jeff.neuman@comlaude.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com>orjeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mailto:rlt26@law.georgetown.edu>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: 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> [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<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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<mailto: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> [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<mailto: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
================================================================= 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 atITServices@timewarner.com<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
While I do feel that some of the pricing schemes that we have seen in the last round could certainly be classified as gaming the system and potentially problematic, I am not yet convinced that they constitute abuse. After all, in the offline world many salesmen base the price of their product or service on the maximum of what they expect the customer is willing to pay. The same product or service can be priced differently for any number of reasons, including on how rich the potential buyer appears to the seller. Not saying this is good or bad, but definitely something that is common practice outside and inside the domain world. Best, Volker Am 23.09.2016 um 22:50 schrieb Lori Schulman:
As Jeff pointed out, it’s not a question of keeping prices low or high, it’s about discriminatory pricing based on whether a national right is granted in a name. I agree with you that the right is separate from the pricing but when the prices are manipulated based on an exercise of a right it becomes a concern. There is a built in deterrent to using the TMCH based on a right when that use then leads to extraordinary pricing.
Lori S. Schulman
Senior Director, Internet Policy
*International Trademark Association (INTA)*
+1-202-704-0408, Skype: lsschulman
*From:*Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] *Sent:* Friday, September 23, 2016 4:42 PM *To:* Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> *Cc:* Lori Schulman <lschulman@inta.org>; Jeff Neuman <jeff.neuman@comlaude.com>; gnso-rpm-wg@icann.org *Subject:* RE: [gnso-rpm-wg] TMCH review objectives
I’m not sure what you’re saying. I am asking why keeping prices low (but maybe not too low, given other comments) is a concern of the TMCH review, and asking for a reason related to the legal rights, as opposed to market interests, of trademark owners. If such a reason isn’t persuasively articulated, then I think that would give us an answer.
Rebecca Tushnet
Georgetown Law
703 593 6759
*From:*Kiran Malancharuvil [mailto:Kiran.Malancharuvil@markmonitor.com] *Sent:* Friday, September 23, 2016 4:37 PM *To:* Rebecca Tushnet *Cc:* Lori Schulman; Jeff Neuman; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* RE: [gnso-rpm-wg] TMCH review objectives
I think it would probably be a mistake then, to try and exclude the issue from the discussion, if you wish to discuss it.
Thanks,
Kiran
*From:*Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] *Sent:* Friday, September 23, 2016 1:35 PM *To:* Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> *Cc:* Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>>; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] TMCH review objectives
I would then like that understanding of the law to be articulated, because I don't see it.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>> wrote:
Hi Rebecca,
I think it’s fair to say that the trademark community (through INTA and elsewhere) is basing their concerns on a full understanding of the law.
Thanks,
Kiran
*Kiran Malancharuvil*
Policy Counselor
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com <http://www.markmonitor.com/>
*From:*Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] *Sent:* Friday, September 23, 2016 1:26 PM *To:* Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>> *Cc:* Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com <mailto:Kiran.Malancharuvil@markmonitor.com>>; Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>>; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] TMCH review objectives
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet
Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org <mailto:lschulman@inta.org>> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
*International Trademark Association (INTA)*
+1-202-704-0408, Skype: lsschulman
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Kiran Malancharuvil via gnso-rpm-wg *Sent:* Friday, September 23, 2016 3:31 PM *To:* Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>> *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com>> <mailto:jeff.neuman@comlaude.com%3e%3e> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark-own... and http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-during-s...
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com <mailto:jeff.neuman@valideus.com><mailto:jeff.neuman@valideus.com> <mailto:jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com><mailto:jeff.neuman@comlaude.com> <mailto:jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu <mailto:rlt26@law.georgetown.edu><mailto:rlt26@law.georgetown.edu>> <mailto:rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com><mailto:psc@vlaw-dc.com>> <mailto:psc@vlaw-dc.com%3e%3e> wrote: 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><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [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 <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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 <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> 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><mailto:gnso-rpm-wg-bounces@icann.org> <mailto:gnso-rpm-wg-bounces@icann.org%3e> [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 <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> 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
================================================================= 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 <mailto:ITServices@timewarner.com><mailto:ITServices@timewarner.com> <mailto:ITServices@timewarner.com%3e>
=================================================================
================================================================= 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 <http://www.avg.com><http://www.avg.com> <http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com><http://www.avg.com> <http://www.avg.com%3e> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org><mailto:gnso-rpm-wg@icann.org> <mailto:gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
I also agree with Brad & Jeff. If ICANN deems it necessary to have a sunrise period for whatever reasons, then there should be mechanisms to prevent that period being gamed 1) The prices should be in-line with pricing outside of that period. 2) There should be mechanisms put in place to prevent gaming where marks are registered with no underlying goods and services to be infringed simply for front running the general release. Yours sincerely, Paul On Fri, Sep 23, 2016 at 9:26 PM, Rebecca Tushnet <rlt26@law.georgetown.edu> wrote:
To reiterate and then I will try to stop: "deep concern" and "related to a right granted by national law" are very different things.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman@inta.org> wrote:
I also agree with Brad and Jeff. This pricing issue is a deep concern for INTA members.
Lori S. Schulman
Senior Director, Internet Policy
*International Trademark Association (INTA)*
+1-202-704-0408, Skype: lsschulman
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Kiran Malancharuvil via gnso-rpm-wg *Sent:* Friday, September 23, 2016 3:31 PM *To:* Jeff Neuman <jeff.neuman@comlaude.com> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] TMCH review objectives
Agree with Jeff and Bradley below.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Sep 23, 2016, at 10:00 AM, Jeff Neuman <jeff.neuman@comlaude.com<mail to:jeff.neuman@comlaude.com>> <jeff.neuman@comlaude.com%3e%3e> wrote:
We also need to look at examples out there where it is not just premium pricing of domains, but there was at least one case (.feedback) that said if you are a trademark owner (whether or not purchased in the Sunrise or after), the price is $X, but if you are not the trademark owner, then your price is $Y, where $Y was thousands of dollars less.
See: http://domainincite.com/19560-forget-sucks-feedback-will- drive-trademark-owners-nuts-all-over-again and http://domainincite.com/19615-feedback-regs-fox-trademark- to-itself-during-sunrise
I believe the policies of .sucks and .feedback need to be discussed. It is one thing to have premium pricing on a name whereby any purchaser of the name would have to pay the same price (even if high); but, it is another thing to have different prices for a name depending on who the purchaser is (discrimination amongst purchasers). That I do believe is in our scope.
Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> <jeff.neuman@valideus.com%3e> or jeff.neuman@comlaude.com<mailt o:jeff.neuman@comlaude.com> <jeff.neuman@comlaude.com%3e> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 12:20 PM To: Rebecca Tushnet <rlt26@law.georgetown.edu<mail to:rlt26@law.georgetown.edu>> <rlt26@law.georgetown.edu%3e%3e> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
“If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that.”
Agreed that we should seek this type of data, certainly anecdotal and more comprehensive if available.
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: Rebecca Tushnet [mailto:rlt26@law.georgetown.edu <rlt26@law.georgetown.edu>] Sent: Friday, September 23, 2016 12:16 PM To: Phil Corwin Cc: Silver, Bradley; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: TMCH review objectives
And is the additional system cost (one component of effectiveness) of individualized review of pricing worth this hypothetical increased risk of later infringement? If post-Sunrise registrations of expensive domain names have led to infringement, I hope we will be able to collect evidence of that. Likewise with the hypothetical effect of encountering an unregistered domain in a new gTLD. In an age of search engines, I thought we had gotten past the idea that a consumer would type in a domain name and then give up if no website, or a nonconfusing but non-trademark owner website, resolves. I also highly doubt there's evidence that consumers think less of a trademark owner for not registering every variation.
Rebecca Tushnet Georgetown Law
Sent from my phone. Apologies for terseness/typos.
On Sep 23, 2016, at 11:39 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@ vlaw-dc.com>> <psc@vlaw-dc.com%3e%3e> wrote: 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> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <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<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> Subject: Re: [gnso-rpm-wg] TMCH review objectives
TMCH’s goal of “protection” 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 <Bradley.Silver@timewarner.com>] Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> 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> <gnso-rpm-wg-bounces@icann.org%3e> [mailto:gnso-rpm-wg-bounces@icann.org <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<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> 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
================================================================= 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< mailto:ITServices@timewarner.com> <ITServices@timewarner.com%3e>
=================================================================
================================================================= 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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> <gnso-rpm-wg@icann.org%3e> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] 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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
Thanks Phil : +1. From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Friday, September 23, 2016 11:33 AM To: Silver, Bradley; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: RE: TMCH review objectives 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 From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] 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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 ================================================================= 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<mailto: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. =================================================================
+1
On Sep 23, 2016, at 8:33 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> wrote:
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
From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] 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> [mailto: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 <mailto: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 ================================================================= 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 <mailto: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 <http://www.avg.com/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
Phillip, The TMCH was created as a centralized database to simplify the ability to trademark holders to register their trademarks so that they might participate in the Sunrise process in an efficient manner. Prior to the Ngtld process, each launch had its own ³TMCH² process (remember .EU?) in which each trademark holder had to submit ³proof² in whatever format the registry demanded. The TMCH was created to render the trademark/Sunrise submission uniform in nature. Nothing more. This then expanded to include ³equivalence² - and hence the +10/50 . The net effect has been that the TMCH has become "THE² only way to participate in Sunrise. Thus, if one were to argue for ³rights holders² it should be over the pricing of TMCH which acts to preclude those trademark holders who cannot afford the cost of registration within the TMCH structure (not to m mention common law rights holders who have no registration). The protection offered by Sunrise was to permit those holding trademarks to on 1st come-1st served basis participate in a registration process in which only TMCH registered trademark holders could play. Just because one held a trademark did not guaranty registration if others held identical trademarks registered from other jurisdictions and registered the domain first. The Sunrise was a huge benefit because it afforded a ³priority² to trademark holders EVEN IF the asserted trademark could be used by a non-trademark holder for non-infringing purposes. The benefit of participating in Sunrise can be thus summarized: 1. Pre-emptive right to register before: A. All REGISTERED trademark holders who had NOT paid to be in TMCH B. ALL COMMON LAW trademark holders who could not participate in TMCH. C. ALL non-infringing non-trademark users In addition, trademark holders obviously retain the following: 1. Curative Right to obtain transfer or cancellation per the UDRP/URS. 2. Curative Right to obtain transfer, cancellation and damages per court action. What is a reasonable price for the Pre-emptive benefit of #1? That of course depends on the extension at issue. Why should we be concerned about pricing in this instance? Having a trademark comes at a price. After all the mark is a monopoly protected using public resources. That the rights holders are burdened with the cost of protection is not per se unreasonable. For example, the trademark registration fees set by various jurisdictions are solely within the power/authority of each jurisdiction. Nations are free to set their fees for registration/maintenance of trademark rights. They can set high registration/maintenance fees if they perceive the monopolistic right to be valuable. Any nation could, for example, set registration/maintenance fees to be a % of revenues. That is the sole purview of the nation. Why should registries be held to any different standard? Will there be gamesmanship and instances of unfairness? With reference to .SUCKS were they seeking high prices? Sure. Was it unfair towards rights holders? No. Pricing is relative. My cost (as a percentage of disposable income) for KEATING.SUCKS is certainly higher than the price for COKE.SUCKS. Is it something that we should be concerned with? No. There is no logical or philosophical basis for limiting pricing. In a capitalist system we rely upon the market to determine the fair price (even in a communist system prices are set at the level to benefit the greater society and not an individual group). Trademark rights holders (and others) already have legal rights (e.g. defamation, unfair competition, etc). They may be difficult claims to prevail upon and it may cost money to press a successful claim. However, such is the legal system. It is not our place to create a utopia for trademark holders. Stepping off soapbox now 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 Thomas Brackey <tom@bmail.build> Date: Friday, September 23, 2016 at 5:52 PM To: Phil Corwin <psc@vlaw-dc.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives
+1
On Sep 23, 2016, at 8:33 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
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 Donuts¹ DPML, are also tied to TMCH registration).
The protection offered by Sunrise Registration is to give rights holders¹ 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 ³hands off² 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 registry¹s 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 RPM¹s 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
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] 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
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 <http://www.avg.com/> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Phil: I am reluctant to weigh in where there is a law professor present (especially from alma mater [L'84]), but I am concerned that the term "price" is the wrong term to focus on in this context as it is a hot button word that policymakers tend to shy away from, as in price fixing or price setting (or becoming the domain price arbitration board as UDRP respondents are fond of using) and that in a forum such as this we should stop talking to avoid violating some phantom business judgment rule. The real issue is that every gTLD has been granted a monopoly of sorts and each second level domain they have to offer has a certain level of economic utility to be realized. It seems to me we are trying to communicate and clarify, comments and proposed provisions that articulate and support the market for these domains. But there may be more than one market. For the business owner who has tied their reputation for quality and consumer goodwill to a term or "mark" the new domain may represent a market to expand their Internet reach to more consumers. Alternatively it may only be a market for an additional expense to deny a potential cybersquatter from using the domain/mark to divert or confuse consumers and reduce the rightsholder's revenues. Another market to consider is that for cybersquatters who may be playing an "enforcement lottery" given the large number of new gTLDs, playing the odds that if the costs to the rightsholders become so great as to outweigh the perceived benefits, that lack of shielding can be taken advantage of and cybersquatters will perceive little risk in purchasing domain/marks of smaller businesses without the resources to actively search for infringement and cybersquatting. And rightsholders have to assess these risks and probabilities without any real data at "sunrise", whether the new gTLD will be a hit with consumers (.guru?) or a flop (name withheld by request). It seems to me that this is part of the complex calculus we are trying to grapple with as we try to keep the markets/monopolies from being warped or abused, one case being premium names shown by your example, as well as "reserved" names held back until the initial market for a registry's SLDs is established. Finally there is the registry's own perception of its market, who are its best customers and how to attract them so the registry can stay in business with a new and untested product. My apologies if this is a bit prolix, but I didn't want the discussion to be overshadowed or muted based on the stigma sometimes attached to "price". Best regards, Scott [vlp_logo][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 11:33 AM To: Silver, Bradley; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] TMCH review objectives 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 From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] 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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
Scott: With all respect, I don't think we have to avoid discussing domain pricing because we are hardly competitors colluding to set prices and thereby inhibit competition. That's the usual reason that business people in the same industry are told to stop talking by their lawyers. I was merely observing that the new gTLD program embodies a decision that ICANN should have a "hands off" policy toward new gTLD pricing models (which I already said is likely outside our remit), and that a trademark owner's willingness to utilize the sunrise registration option varies with the price set for registering its TMCH-registered mark by the RO. As for registries being monopolies, my own view is that this is true only in the sense that each gTLD can have only one registry operator, and that the standard presumptive renewal clause makes it very difficult to ever envision a registry being put out for competitive rebid unless the technical management is totally incompetent or it goes bust and can't pay its fees to ICANN (and the proposed revisions to the standard RA envision ICANN waiving or reducing those fees in certain instances, which is something I'm not comfortable with for several reasons but is a subject completely outside the scope of this WG). Indeed, I often jokingly refer to presumptive renewal as perpetual renewal, because the trigger for losing it is so high - and I know there are valid arguments that it should be so that ROs invest necessary resources. To complete the conversation, so far as I am aware every RO has complete pricing freedom except, for historic reasons, Verisign for .net (due to restrictions in its RA with ICANN) and .Com (due to restrictions in the Cooperative Agreement with NTIA). 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: Scott Austin [mailto:SAustin@vlplawgroup.com] Sent: Friday, September 23, 2016 3:25 PM To: Phil Corwin; Silver, Bradley; Rebecca Tushnet; gnso-rpm-wg@icann.org Subject: RE: TMCH review objectives Phil: I am reluctant to weigh in where there is a law professor present (especially from alma mater [L'84]), but I am concerned that the term "price" is the wrong term to focus on in this context as it is a hot button word that policymakers tend to shy away from, as in price fixing or price setting (or becoming the domain price arbitration board as UDRP respondents are fond of using) and that in a forum such as this we should stop talking to avoid violating some phantom business judgment rule. The real issue is that every gTLD has been granted a monopoly of sorts and each second level domain they have to offer has a certain level of economic utility to be realized. It seems to me we are trying to communicate and clarify, comments and proposed provisions that articulate and support the market for these domains. But there may be more than one market. For the business owner who has tied their reputation for quality and consumer goodwill to a term or "mark" the new domain may represent a market to expand their Internet reach to more consumers. Alternatively it may only be a market for an additional expense to deny a potential cybersquatter from using the domain/mark to divert or confuse consumers and reduce the rightsholder's revenues. Another market to consider is that for cybersquatters who may be playing an "enforcement lottery" given the large number of new gTLDs, playing the odds that if the costs to the rightsholders become so great as to outweigh the perceived benefits, that lack of shielding can be taken advantage of and cybersquatters will perceive little risk in purchasing domain/marks of smaller businesses without the resources to actively search for infringement and cybersquatting. And rightsholders have to assess these risks and probabilities without any real data at "sunrise", whether the new gTLD will be a hit with consumers (.guru?) or a flop (name withheld by request). It seems to me that this is part of the complex calculus we are trying to grapple with as we try to keep the markets/monopolies from being warped or abused, one case being premium names shown by your example, as well as "reserved" names held back until the initial market for a registry's SLDs is established. Finally there is the registry's own perception of its market, who are its best customers and how to attract them so the registry can stay in business with a new and untested product. My apologies if this is a bit prolix, but I didn't want the discussion to be overshadowed or muted based on the stigma sometimes attached to "price". Best regards, Scott [vlp_logo][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, September 23, 2016 11:33 AM To: Silver, Bradley; Rebecca Tushnet; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] TMCH review objectives 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 From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Silver, Bradley Sent: Friday, September 23, 2016 11:00 AM To: Rebecca Tushnet; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] 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> [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<mailto: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 ================================================================= 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<mailto: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<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16 This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date: 09/23/16
participants (15)
-
Jeff Neuman -
Kiran Malancharuvil -
Kurt Pritz -
Lori Schulman -
Paul Keating -
Paul Tattersfield -
Paul＠law.es ZIMBRA
-
Petter Rindforth -
Phil Corwin -
Rebecca Tushnet -
Reg Levy -
Scott Austin -
Silver, Bradley -
Thomas Brackey -
Volker Greimann