Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi folks, Just following up on some statements from today's transcript: On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date. i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD. Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates. Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269
_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>
_______________________________________________ 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 Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/> _______________________________________________ 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>
Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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 ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Sorry but I do NOT agree with your premise. With respect Our job is to investigate and see if there is a problem. It is not to place a presumptive burden or benefit. on either side of this discussion. I also find it difficult to accept your statements given that efforts to obtain data have been resisted. Sincerely, Paul Keating, Esq.
On Jul 13, 2017, at 3:37 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt ________________ Kurt Pritz kurt@kjpritz.com +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Hi Georges, On Thu, Jul 13, 2017 at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
These are not "unfounded" allegations. Evidence has been presented that provide a foundation for further analysis with a larger dataset, e.g. see my post at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-March/001119.html which looked closely at just one of the Top 10 downloaded strings, namely "HOTEL". The identical analysis would apply to the plural HOTELS. Others have noted issues with "THE" and other strings that were detected via sunrises. It's also been well documented that Deloitte is entering figurative marks and other non-standard character marks into the TMCH (the examples that Rebecca produced, and which Deloitte assessed, would have ALL been accepted). Given we've not been given access to the entire list of TMCH marks, the above is just the tip of the iceberg. The only way to demonstrate systematic "widespread" abuse is to access the entire list, or at least a greater proportion of it (e.g. the Top 500 most requested TMCH strings, which I've repeatedly asked for, which The Analysis Group would already have generated, but they're holding it back for whatever reason), it seems that those who don't want the "widespread abuse" to be formally documented have just one strategy, namely to prevent any formal access to more than just those top 10 most requested strings. A comparison with Donald Trump with allegations of "basically no evidence" is not correct. Here, we already have concrete examples, that are just the tip of the iceberg. In my view, that tip of the iceberg is ***already sufficient*** to justify elimination of the TMCH in its entirety. I think what some folks fear is that once more and more data is gathered, it would sway even more unbiased people to that view, including the general public, and that it has been another boondoggle that folks are trying to cover up. I've made long standing requests that ICANN predefine "metrics" as to what constitutes success in its policy-making, e.g. more than 10 years ago for .asia: http://forum.icann.org/lists/asia-tld-agreement/msg00000.html " There should be predefined numeric metrics as to what constitutes "success", e.g. 1 million+ domain names registered by the end of the term of the contract, with a certain percentage (at least 1%) of the global internet traffic going to domains in that TLD. It's typical ICANN "old school" thinking to not define success metrics before something is implemented, and then declare things a "glorious success" later, without reference to any benchmarks." It seems to me that we have some people declaring the TMCH and its implementation "a glorious success" in a similar manner as I warned against. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...> https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “ <>abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt ________________ Kurt Pritz kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/> _______________________________________________ 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>
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***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I still feel that the best way to remove abandonment would be to remove the notices from the registration path and place them in the post-registration notice path. Extending the notice period for trademark holders might help be a good compromise. Best, Volker Am 13.07.2017 um 16:25 schrieb Jon Nevett:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com <mailto:kurt@kjpritz.com>
+1.310.400.4184
Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for*two*registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E:susan.payne@valideus.com <mailto:susan.payne@valideus.com>
D: +44 20 7421 8255
T: +44 20 7421 8299
M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
> Hi folks,
>
> Just following up on some statements from today's transcript:
>
> On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
>> Adobe Connect chat transcript for 12 July 2017:
> ...
>> Jeff Neuman:My belief is that we have a huge rate of people
>> abandoning is because (i) registrars were mining the system, (ii)
>> registrants were mining the system to see what was valuable, and to a
>> lesser extent as a result of the claim (either legitimiate or not)
>>
>> Jeff Neuman:But I cant prove any of those theories
>>
>> Kathy Kleiman:@Jeff: we have gathered evidence already from
>> registries; there is probably more
>>
>> Jeff Neuman:There just is no way to do so on a backwards basis
>
> If one had access to the raw data (and presumably The Analysis Group
> would have had it, to generate their reports), one could filter such
> "mining" by examining abandonment rates by (1) registrar and (2) by
> time relative to the launch date.
>
> i.e. presumably those were "mining" the system were not spreading out
> their queries across all registrars equally. It would be easy to
> identify the outliers. Furthermore, registrants would be also focused
> on a few registrars that permit those bulk lookups, and they wouldn't
> spread their queries over time equally --- they'd be focused at the
> launch (i.e. the beginning, first few days, etc.) of a TLD.
>
> Of course, if need be, one could anonymize the data by registrar (i.e.
> Registrar 1, Registrar 2, etc.), if there are any concerns about
> revealing their individual abandonment rates.
>
> Registry operators and registrars both have technology to block WHOIS
> access to those who are "mining" that data. One can use similar
> detection techniques in this instance.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> _______________________________________________
> 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
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-- 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.
Volker, Since we do not know what has caused the abandonment of applications (for lack of getting any reliable data from Registrars or Registries), I don’t believe we should come to the conclusion that the rate of abandonment is a problem. And if it is not a problem, then there is no reason to reduce the level. For whatever reason, many have come to the conclusion that the rate of abandonment is a problem. I know personally I am not there yet. Given the incredibly high abandonment rate we saw in .biz in 2001 from the trademark claims service (as reported publicly in the Summit Strategies report), and given the fact that I have my own theories on why the rate is so high (which I cannot prove either), I am not convinced that this high rate was unexpected. This is the point I was trying to make yesterday on the call. If we cannot show why the abandonment rate if too high (or why it was a problem), then why are we trying to find a solution by trying to lower it. 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 Volker Greimann Sent: Thursday, July 13, 2017 10:34 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) I still feel that the best way to remove abandonment would be to remove the notices from the registration path and place them in the post-registration notice path. Extending the notice period for trademark holders might help be a good compromise. Best, Volker Am 13.07.2017 um 16:25 schrieb Jon Nevett: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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
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Dear Working Group members: I would like to recall some points made in an email I sent to the list on 13-April: the number of sunrise registrations per new gTLD launch was an average of 130 (I believe the high-water-mark was 950). This alone seems to mitigate against further investigation for evidence of abusive use of Sunrises. Are there some speculators that have obtained trademark registrations for dictionary words that then used them for purposes of getting names in Sunrises? Of course. In fact, here’s one example: http://domainincite.com/16492-how-one-guy-games-new-gtld-sunrise-periods. All this said, it is still difficult to see how obtaining a list of marks in the TMCH would allow anyone to assess the extent of any abuse beyond what we already know. To answer Paul Keating’s question: - as to Sunrises: “no”, the numbers simply do not bear this out - as to Claims/abandonment: there is simply no way to know the reasons for past abandonment Additionally, I have found several external sources (links have been provided to this list) pointing to 65% or so as a “normal” abandonment rate. Also, Jeff Neumann has advanced on several occasions that a large portion of the abandoned registration attempts were not actual registration attempts, but registries, registrars, and registrants pinging the TMCH in an attempt to find commercially-valuable information. Perhaps such practices should be examined in more detail. Regards, Brian From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Thursday, July 13, 2017 4:42 PM To: Volker Greimann; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Volker, Since we do not know what has caused the abandonment of applications (for lack of getting any reliable data from Registrars or Registries), I don’t believe we should come to the conclusion that the rate of abandonment is a problem. And if it is not a problem, then there is no reason to reduce the level. For whatever reason, many have come to the conclusion that the rate of abandonment is a problem. I know personally I am not there yet. Given the incredibly high abandonment rate we saw in .biz in 2001 from the trademark claims service (as reported publicly in the Summit Strategies report), and given the fact that I have my own theories on why the rate is so high (which I cannot prove either), I am not convinced that this high rate was unexpected. This is the point I was trying to make yesterday on the call. If we cannot show why the abandonment rate if too high (or why it was a problem), then why are we trying to find a solution by trying to lower it. 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 Volker Greimann Sent: Thursday, July 13, 2017 10:34 AM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) I still feel that the best way to remove abandonment would be to remove the notices from the registration path and place them in the post-registration notice path. Extending the notice period for trademark holders might help be a good compromise. Best, Volker Am 13.07.2017 um 16:25 schrieb Jon Nevett: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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 ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ 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 -- 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<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://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<http://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<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://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<http://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.
Hi folks, On Thu, Jul 13, 2017 at 10:57 AM, Beckham, Brian <brian.beckham@wipo.int> wrote:
I would like to recall some points made in an email I sent to the list on 13-April: the number of sunrise registrations per new gTLD launch was an average of 130 (I believe the high-water-mark was 950). This alone seems to mitigate against further investigation for evidence of abusive use of Sunrises.
Let's see: when talking about "abuse" of the sunrise, the "low" number of registrations is cited as a reason not to investigate further. However, when talking about whether or not the sunrise period should be entirely eliminated, because the benefits are small, how is it that these "low" number of registrations are not cited (by these same people) as a reason to abandon the sunrise, for lack of benefits?
Also, Jeff Neumann has advanced on several occasions that a large portion of the abandoned registration attempts were not actual registration attempts, but registries, registrars, and registrants pinging the TMCH in an attempt to find commercially-valuable information. Perhaps such practices should be examined in more detail.
Sometimes this mailing list feels like the movie "50 First Dates", where folks lost their memories each night. Albeit, with a time spam here of just a few hours. That discussion of "pinging" skewing results was already discussed in an earlier post in this very thread at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002182.html which, ironically given Susan's (and others') objections re: "inline posting" vs. "top posting", actually appears within Brian's email (see near the middle of the entire archived post): http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002194.html They've already removed more than 60% of the data (to get down from 99% raw abandonment rate to 93.7% filtered abandonment rate). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
One thing may be implementation and disruption of the direct registration flow. This may not be as pronounced for retail registrars, but in registrars that have no direct contact to their registrants, e.g. where third party companies handle the customer-facing portals, direct display had to be replaced by tertiary methods that resulted in abandonment. While I cannot share TLD results directly, I can provide some anecdotal numbers for a few TLDs from a couple of randomly picked golive launches we participated in: TLD 1: Not approved claims: 5 Submitted: 37 = 11% abandonment TLD 2: Not approved claims: 112 Submitted: 2529 =4% abandonment TLD 3: Not approved claims 0 Domains to submit: 4 = 0 % abandonment TLD 4: Not approved claims 1 Domains to submit: 1 = 50 % abandonment TLD 5: Not approved claims 1 Domains to submit: 0 = 100 % abandonment TLD 6: Not approved claims 3 Domains to submit: 38 = 7 % abandonment TLD 7: Not approved claims 1 Domains to submit: 1 = 50 % abandonment TLD 8: Not approved claims 1 Domains to submit: 76 = 1 % abandonment TLD 9: * Not approved claims: 25 Submitted: 220 =10% abandonment TLD 10: Not approved claims 12 Domains to submit: 150 = 7 % abandonment TLD 11: * Not approved claims: 9 Submitted: 99 = 8% abandonment I took these numbers from our golive statistics that our developers reported at the time shortly after the general availability opened in the respective TLDs. Hope this helps a bit. Volker Am 13.07.2017 um 16:41 schrieb Jeff Neuman:
Volker,
Since we do not know what has caused the abandonment of applications (for lack of getting any reliable data from Registrars or Registries), I don’t believe we should come to the conclusion that the rate of abandonment is a problem. And if it is not a problem, then there is no reason to reduce the level.
For whatever reason, many have come to the conclusion that the rate of abandonment is a problem. I know personally I am not there yet. Given the incredibly high abandonment rate we saw in .biz in 2001 from the trademark claims service (as reported publicly in the Summit Strategies report), and given the fact that I have my own theories on why the rate is so high (which I cannot prove either), I am not convinced that this high rate was unexpected.
This is the point I was trying to make yesterday on the call. If we cannot show why the abandonment rate if too high (or why it was a problem), then why are we trying to find a solution by trying to lower it.
*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 *Volker Greimann *Sent:* Thursday, July 13, 2017 10:34 AM *To:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
I still feel that the best way to remove abandonment would be to remove the notices from the registration path and place them in the post-registration notice path. Extending the notice period for trademark holders might help be a good compromise.
Best,
Volker
Am 13.07.2017 um 16:25 schrieb Jon Nevett:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com <mailto:kurt@kjpritz.com>
+1.310.400.4184
Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for*two*registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E:susan.payne@valideus.com <mailto:susan.payne@valideus.com>
D: +44 20 7421 8255
T: +44 20 7421 8299
M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
> Hi folks,
>
> Just following up on some statements from today's transcript:
>
> On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
>> Adobe Connect chat transcript for 12 July 2017:
> ...
>> Jeff Neuman:My belief is that we have a huge rate of people
>> abandoning is because (i) registrars were mining the system, (ii)
>> registrants were mining the system to see what was valuable, and to a
>> lesser extent as a result of the claim (either legitimiate or not)
>>
>> Jeff Neuman:But I cant prove any of those theories
>>
>> Kathy Kleiman:@Jeff: we have gathered evidence already from
>> registries; there is probably more
>>
>> Jeff Neuman:There just is no way to do so on a backwards basis
>
> If one had access to the raw data (and presumably The Analysis Group
> would have had it, to generate their reports), one could filter such
> "mining" by examining abandonment rates by (1) registrar and (2) by
> time relative to the launch date.
>
> i.e. presumably those were "mining" the system were not spreading out
> their queries across all registrars equally. It would be easy to
> identify the outliers. Furthermore, registrants would be also focused
> on a few registrars that permit those bulk lookups, and they wouldn't
> spread their queries over time equally --- they'd be focused at the
> launch (i.e. the beginning, first few days, etc.) of a TLD.
>
> Of course, if need be, one could anonymize the data by registrar (i.e.
> Registrar 1, Registrar 2, etc.), if there are any concerns about
> revealing their individual abandonment rates.
>
> Registry operators and registrars both have technology to block WHOIS
> access to those who are "mining" that data. One can use similar
> detection techniques in this instance.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> _______________________________________________
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-- 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 <mailto:vgreimann@key-systems.net> Web:www.key-systems.net <http://www.key-systems.net> /www.RRPproxy.net <http://www.RRPproxy.net> www.domaindiscount24.com <http://www.domaindiscount24.com> /www.BrandShelter.com <http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems <http://www.facebook.com/KeySystems> www.twitter.com/key_systems <http://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 <http://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 <mailto:vgreimann@key-systems.net> Web:www.key-systems.net <http://www.key-systems.net> /www.RRPproxy.net <http://www.RRPproxy.net> www.domaindiscount24.com <http://www.domaindiscount24.com> /www.BrandShelter.com <http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems <http://www.facebook.com/KeySystems> www.twitter.com/key_systems <http://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 <http://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.
-- 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.
Hi folks, In addition to the blog posts mentioned by Jon Nevett: On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...
there was also a good article by DomainNameWire: http://domainnamewire.com/2014/02/10/how-common-words-like-pizza-money-and-s... which had a small spreadsheet of common terms that appear in the TMCH. Indeed, registry operators like Uniregistry would not have had to adopt "anti-gaming" provisions (not allowing sunrise registrations to be transferred to other entities, unless the entity itself was sold; see the DNW article above) unless there was widespread abuse of the TMCH. In other words, why are there "counter-measures" like that (including holding back names by the registry) unless the TMCH was widely being abused? The fact these counter-measures exist are inconsistent with the position of Georges Nahitchevansky that there's no foundation at all for abusive and overreaching TMCH recordals. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George Kirikos. You are talking about one registry out of how many? Moreover, I disagree with your conclusions. For example, the fact that there are anti voter fraud laws in place in many jurisdictions does not in and of itself mean that there is widespread voter fraud. Having prophylactic measures in place is just good business. The same applies here. The only thing we have seen showing that any kind of gaming was done was with one very limited situation by a domainer who registered some common trademarks to then obtain a handful of domain names. This is hardly evidence of abuse by bona fide trademark owners. So again, why waste all this time in pursuit of a negative. -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, July 13, 2017 10:44 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi folks, In addition to the blog posts mentioned by Jon Nevett: On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-work ed-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of -generic-words/
there was also a good article by DomainNameWire: http://domainnamewire.com/2014/02/10/how-common-words-like-pizza-money-and-s... which had a small spreadsheet of common terms that appear in the TMCH. Indeed, registry operators like Uniregistry would not have had to adopt "anti-gaming" provisions (not allowing sunrise registrations to be transferred to other entities, unless the entity itself was sold; see the DNW article above) unless there was widespread abuse of the TMCH. In other words, why are there "counter-measures" like that (including holding back names by the registry) unless the TMCH was widely being abused? The fact these counter-measures exist are inconsistent with the position of Georges Nahitchevansky that there's no foundation at all for abusive and overreaching TMCH recordals. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Georges, You seem to set out only those facts supporting your position. The issue is about gaming the system by anyone. I don't care that it is a domainer or trademark holder. There are enough facts to warrant the investigation. If the investigation shows no abuse i will urge not changing anything. However, not investigating because you don't feel there are other examples of abuse is putting the cart before the horse. As far as the Uniregistry issue, we dont know why they created the rule. However, i know the owner and his counsel and they would not have created it in advance. But, lets ask and see. Sent from my iPad
On 13 Jul 2017, at 17:20, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
George Kirikos. You are talking about one registry out of how many? Moreover, I disagree with your conclusions. For example, the fact that there are anti voter fraud laws in place in many jurisdictions does not in and of itself mean that there is widespread voter fraud. Having prophylactic measures in place is just good business. The same applies here. The only thing we have seen showing that any kind of gaming was done was with one very limited situation by a domainer who registered some common trademarks to then obtain a handful of domain names. This is hardly evidence of abuse by bona fide trademark owners. So again, why waste all this time in pursuit of a negative.
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Thursday, July 13, 2017 10:44 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi folks,
In addition to the blog posts mentioned by Jon Nevett:
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote: https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-work ed-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of -generic-words/
there was also a good article by DomainNameWire:
http://domainnamewire.com/2014/02/10/how-common-words-like-pizza-money-and-s...
which had a small spreadsheet of common terms that appear in the TMCH. Indeed, registry operators like Uniregistry would not have had to adopt "anti-gaming" provisions (not allowing sunrise registrations to be transferred to other entities, unless the entity itself was sold; see the DNW article above) unless there was widespread abuse of the TMCH.
In other words, why are there "counter-measures" like that (including holding back names by the registry) unless the TMCH was widely being abused? The fact these counter-measures exist are inconsistent with the position of Georges Nahitchevansky that there's no foundation at all for abusive and overreaching TMCH recordals.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
________________________________
Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Georges, On Thu, Jul 13, 2017 at 11:19 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
George Kirikos. You are talking about one registry out of how many? Moreover, I disagree with your conclusions. For example, the fact that there are anti voter fraud laws in place in many jurisdictions does not in and of itself mean that there is widespread voter fraud. Having prophylactic measures in place is just good business. The same applies here. The only thing we have seen showing that any kind of gaming was done was with one very limited situation by a domainer who registered some common trademarks to then obtain a handful of domain names. This is hardly evidence of abuse by bona fide trademark owners. So again, why waste all this time in pursuit of a negative.
Uniregistry operates more than one TLD, and I did not provide an exhaustive list of all the counter-measures. A better analogy than your anti-voter fraud laws is the proliferation of spam-filtering, as a counter-measure to the rise in spam volume. Indeed, for new gTLDs, some folks are resorting to blocking entire TLDs: https://www.google.com/search?q=blocking+tlds+spam https://www.spamhaus.org/statistics/tlds/ I know I've never seen an email to myself from .cricket or .stream that wasn't spam. The fact that folks are blocking entire TLDs, or using spam filtering in general *arose* from the abuse, just like the Uniregistry counter-measures arose from observing the gaming. Same applies to others holding back names (as per yesterday's discussion of premium and/or "premium-reserved" names, some of that is perhaps a response to gaming of the TMCH). What you describe as "one limited situation by a domainer" is incorrect. There were multiple entities detected based on the limited data that was available. As for "hardly evidence of abuse by bona fide trademark owners" opens the question "who is a bona fide trademark owner" --- care to answer? Some seem to take the position that anyone that has a mark registered in the Benelux or Pakistan or whichever has the loosest standards at any point in time is "bona fide", i.e. the "a trademark is a trademark is a trademark" crowd, who say "thou shall not ever question the validity of any registered trademark. Only national authorities can ever question a trademark." Others take a different view, e.g. consider the decisions in: https://eu.adr.eu/adr/decisions/decision.php?dispute_id=3147 http://eu.adr.eu/adr/decisions/decision.php?dispute_id=2438 where registered trademarks for "ASK" and "AUTOTRADER" by a domain name registrant used in a sunrise, in the class of "plectrums" weren't enough to allow the registrant to keep the domain name, despite their registered TM never being formally invalidated by a national authority. Perhaps if you will give us a strong "test" for who is a bona fide trademark owner, so that those failing the test can be removed from the TMCH, that would go a long way to help justifying the continuation of the TMCH. With that test, we can also look at the data and see how many TMCH recordals were accepted by Deloitte that failed the test. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Jon: I am not denying anything. What I object to is folks claiming widespread abuse by trademark owners with little to no evidence. The only evidence has been about domainers and speculators going out to register some marks for pencils and the like and then using such to register a handful of domain names in the new gtlds. Some want to lump genuine trademark owners with these speculators to basically try to gut both the Sunrise and claims notices protections. If the only evidence is a guy who registered “the” to obtain some domains in the new gtlds based on “the” and a party that registered common word trademarks for pencils to obtain a handful of domain names, then I think it is apparent that any claimed abuse is by speculators not real bona fide trademark owners. As an aside, I am somewhat surprised that some folks can’t seem to see the difference (or choose to ignore the difference) between a genuine trademark owner that offers real goods and services under a trademark as part of a business based on the brands and services (e.g. DISNEY, RENAULT, BMW, PEPSI, SAMSUNG etc.) versus someone who registers marks for pencils for the sole purpose of speculating in domain names. So instead of embarking on a data witch hunt to try and find things to gut the system with, I do agree with you and others that we should work to try and address and fix the bumps we know of – such as the limited speculator problem that has surfaced. Georges From: Jon Nevett [mailto:jon@donuts.email] Sent: Thursday, July 13, 2017 10:25 AM To: Nahitchevansky, Georges Cc: Paul Keating; Kurt Pritz; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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 ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ 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
Thanks Georges. Unfortunately, the speculators you refer to are actual trademark holders with equal rights in the TMCH as Disney, Renault, BMW, etc. You are absolutely correct that we need to resolve the dichotomy between the two groups or leave it to the market to resolve. Jon
On Jul 13, 2017, at 3:33 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Jon: I am not denying anything. What I object to is folks claiming widespread abuse by trademark owners with little to no evidence. The only evidence has been about domainers and speculators going out to register some marks for pencils and the like and then using such to register a handful of domain names in the new gtlds. Some want to lump genuine trademark owners with these speculators to basically try to gut both the Sunrise and claims notices protections. If the only evidence is a guy who registered “the” to obtain some domains in the new gtlds based on “the” and a party that registered common word trademarks for pencils to obtain a handful of domain names, then I think it is apparent that any claimed abuse is by speculators not real bona fide trademark owners. As an aside, I am somewhat surprised that some folks can’t seem to see the difference (or choose to ignore the difference) between a genuine trademark owner that offers real goods and services under a trademark as part of a business based on the brands and services (e.g. DISNEY, RENAULT, BMW, PEPSI, SAMSUNG etc.) versus someone who registers marks for pencils for the sole purpose of speculating in domain names. So instead of embarking on a data witch hunt to try and find things to gut the system with, I do agree with you and others that we should work to try and address and fix the bumps we know of – such as the limited speculator problem that has surfaced. <>
Georges
From: Jon Nevett [mailto:jon@donuts.email] Sent: Thursday, July 13, 2017 10:25 AM To: Nahitchevansky, Georges Cc: Paul Keating; Kurt Pritz; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...>
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
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 Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt ________________ Kurt Pritz kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/> _______________________________________________ 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>
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We completely agree that there is a world of difference between speculative token users versus world famous brand owners. We also note the numerous challenge procedures already in existence to address mere token use, including trademark cancellation actions at the national level, the Clearinghouse dispute resolution procedure, and sunrise dispute resolution procedures at the registry level. Perhaps the WG should seek out data about how interested parties might be incentivized to actually use the these processes. Thank you, Brian Brian J. Winterfeldt Co-Head of Global Brand Management and Internet Practice Mayer Brown LLP From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Thursday, July 13, 2017 4:17 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Thanks Georges. Unfortunately, the speculators you refer to are actual trademark holders with equal rights in the TMCH as Disney, Renault, BMW, etc. You are absolutely correct that we need to resolve the dichotomy between the two groups or leave it to the market to resolve. Jon On Jul 13, 2017, at 3:33 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Jon: I am not denying anything. What I object to is folks claiming widespread abuse by trademark owners with little to no evidence. The only evidence has been about domainers and speculators going out to register some marks for pencils and the like and then using such to register a handful of domain names in the new gtlds. Some want to lump genuine trademark owners with these speculators to basically try to gut both the Sunrise and claims notices protections. If the only evidence is a guy who registered “the” to obtain some domains in the new gtlds based on “the” and a party that registered common word trademarks for pencils to obtain a handful of domain names, then I think it is apparent that any claimed abuse is by speculators not real bona fide trademark owners. As an aside, I am somewhat surprised that some folks can’t seem to see the difference (or choose to ignore the difference) between a genuine trademark owner that offers real goods and services under a trademark as part of a business based on the brands and services (e.g. DISNEY, RENAULT, BMW, PEPSI, SAMSUNG etc.) versus someone who registers marks for pencils for the sole purpose of speculating in domain names. So instead of embarking on a data witch hunt to try and find things to gut the system with, I do agree with you and others that we should work to try and address and fix the bumps we know of – such as the limited speculator problem that has surfaced. Georges From: Jon Nevett [mailto:jon@donuts.email] Sent: Thursday, July 13, 2017 10:25 AM To: Nahitchevansky, Georges Cc: Paul Keating; Kurt Pritz; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the/<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedomains.com%2F2017%2F02%2F01%2Fthe-trademark-clearinghouse-worked-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the%2F&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=9%2BNz%2FP9CL9Zq3ImeGuxo8hWk5cMZOnWCND0S3Nlzmuk%3D&reserved=0> https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-generic-words/<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedomains.com%2F2014%2F03%2F22%2Ftmch-has-plenty-of-trademarks-of-generic-words%2F&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=hQkAGcVWLB2orBuibbbVjEwlVox1EgfQw6z8E3iZoh8%3D&reserved=0> On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>[mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%20Revised%20TMCH%20Report%20-%20March%202017.pdf?version=1&modificationDate=1490349029000&api=v2<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcommunity.icann.org%2Fdownload%2Fattachments%2F64066042%2FAnalysis%2520Group%2520Revised%2520TMCH%2520Report%2520-%2520March%25202017.pdf%3Fversion%3D1%26modificationDate%3D1490349029000%26api%3Dv2&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=P1s79D5w4GllZuaUgWeZ6207ZNBHn3Xmkfb35UXokbM%3D&reserved=0> (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=e16AJaV3%2Fo7iY%2BMGqZnEv2Am5BrKZMLgODldUHoHqTY%3D&reserved=0> On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=e16AJaV3%2Fo7iY%2BMGqZnEv2Am5BrKZMLgODldUHoHqTY%3D&reserved=0> _______________________________________________ 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C2271e3492a144b80aaf808d4ca2c1216%7C09131022b7854e6d8d42916975e51262%7C0&sdata=ym8kWY190hd1rXGevUOqjofk%2BLEq77Zj9K4AhRm7PzE%3D&reserved=0>
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On 13/7/17 2:16 pm, Winterfeldt, Brian J. wrote:
We completely agree that there is a world of difference between speculative token users versus world famous brand owners.
We also note the numerous challenge procedures already in existence to address mere token use, including trademark cancellation actions at the national level,
1. The incentives are wrong (there is no way that an individual or small business would ever expend thousands to challenge a bogus registration for a words like "hotel"). 2. Maybe the trademark registration is valid, but it's a design mark or a mark that's limited to a particular class of goods or services, in which case a cancellation action would fail. 3. What national level? The TMCH is secret, so apart from searching every trademark registry in the world, how are they to know which trademark to cancel? (And even then, they might come up with several matches, and still won't know which trademark was used in the TMCH.) -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org jmalcolm@eff.org Tel: 415.436.9333 ext 161 :: Defending Your Rights in the Digital World :: Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
Dear Jeremy: We appreciate your point of view. However, the situation seems analogous to the thousands of dollars spent by brands to remedy problems caused through ten dollar domain name registrations. We suspect that Clearinghouse and Sunrise dispute resolution processes would prove quite affordable, but it is impossible to know for sure without any prior use of those processes. In addition, we are not sure what you mean with respect to design marks vis-à-vis cancellation proceedings based on abandonment or nonuse, either of which remain viable bases to challenge national trademark registrations. To that end, claims notices are supposed to contain ample information to identify the cited trademark registrations. Thank you, Brian Brian J. Winterfeldt Co-Head of Global Brand Management and Internet Practice Mayer Brown LLP From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeremy Malcolm Sent: Thursday, July 13, 2017 5:24 PM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) On 13/7/17 2:16 pm, Winterfeldt, Brian J. wrote: We completely agree that there is a world of difference between speculative token users versus world famous brand owners. We also note the numerous challenge procedures already in existence to address mere token use, including trademark cancellation actions at the national level, 1. The incentives are wrong (there is no way that an individual or small business would ever expend thousands to challenge a bogus registration for a words like "hotel"). 2. Maybe the trademark registration is valid, but it's a design mark or a mark that's limited to a particular class of goods or services, in which case a cancellation action would fail. 3. What national level? The TMCH is secret, so apart from searching every trademark registry in the world, how are they to know which trademark to cancel? (And even then, they might come up with several matches, and still won't know which trademark was used in the TMCH.) -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C225acb868d3b499d725a08d4ca358d39%7C09131022b7854e6d8d42916975e51262%7C0&sdata=V%2FPVs0zyyjueb5zijUKk8MrypHckdWuFCvmpEk1leA0%3D&reserved=0> jmalcolm@eff.org<mailto:jmalcolm@eff.org> Tel: 415.436.9333 ext 161 :: Defending Your Rights in the Digital World :: Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C225acb868d3b499d725a08d4ca358d39%7C09131022b7854e6d8d42916975e51262%7C0&sdata=HNr7crFZB0ILx%2FK84lutCzbQ87vK6RPTWEFMwMeEh%2Fo%3D&reserved=0> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122 __________________________________________________________________________ This email and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this e-mail.
Adding to the below conversation, with respect to concerns about the efficacy of challenge procedures given the claimed lack of (financial) incentives, if this WG is to propose creating a solution where any interested third party can (presumably at no cost) challenge a sunrise registration/TMCH recordation, then for parity/fairness, we may want to also consider a similar procedure for third parties to also challenge (also at no cost) abusive domain name registrations. This is not to say there is not a valid concern, but if this WG is aiming to “clean up” things, let’s not stop at the TMCH (which again for context, seems to be the result of a small handful of speculators gaming Sunrise rules (presumably to the detriment of other speculators?)). As has been pointed out, there is a gross disparity between the cost to register an infringing domain name vs trademark owners’ direct enforcement costs (not to mention the annual costs to maintain a defensive portfolio), and importantly, the cost of harm to consumers. This could be handled by ICANN’s new Consumer Safeguards division. Brian From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Winterfeldt, Brian J. Sent: Friday, July 14, 2017 1:24 AM To: 'Jeremy Malcolm'; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Dear Jeremy: We appreciate your point of view. However, the situation seems analogous to the thousands of dollars spent by brands to remedy problems caused through ten dollar domain name registrations. We suspect that Clearinghouse and Sunrise dispute resolution processes would prove quite affordable, but it is impossible to know for sure without any prior use of those processes. In addition, we are not sure what you mean with respect to design marks vis-à-vis cancellation proceedings based on abandonment or nonuse, either of which remain viable bases to challenge national trademark registrations. To that end, claims notices are supposed to contain ample information to identify the cited trademark registrations. Thank you, Brian Brian J. Winterfeldt Co-Head of Global Brand Management and Internet Practice Mayer Brown LLP From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jeremy Malcolm Sent: Thursday, July 13, 2017 5:24 PM To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) On 13/7/17 2:16 pm, Winterfeldt, Brian J. wrote: We completely agree that there is a world of difference between speculative token users versus world famous brand owners. We also note the numerous challenge procedures already in existence to address mere token use, including trademark cancellation actions at the national level, 1. The incentives are wrong (there is no way that an individual or small business would ever expend thousands to challenge a bogus registration for a words like "hotel"). 2. Maybe the trademark registration is valid, but it's a design mark or a mark that's limited to a particular class of goods or services, in which case a cancellation action would fail. 3. What national level? The TMCH is secret, so apart from searching every trademark registry in the world, how are they to know which trademark to cancel? (And even then, they might come up with several matches, and still won't know which trademark was used in the TMCH.) -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C225acb868d3b499d725a08d4ca358d39%7C09131022b7854e6d8d42916975e51262%7C0&sdata=V%2FPVs0zyyjueb5zijUKk8MrypHckdWuFCvmpEk1leA0%3D&reserved=0> jmalcolm@eff.org<mailto:jmalcolm@eff.org> Tel: 415.436.9333 ext 161 :: Defending Your Rights in the Digital World :: Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=01%7C01%7CBwinterfeldt%40mayerbrown.com%7C225acb868d3b499d725a08d4ca358d39%7C09131022b7854e6d8d42916975e51262%7C0&sdata=HNr7crFZB0ILx%2FK84lutCzbQ87vK6RPTWEFMwMeEh%2Fo%3D&reserved=0> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122 __________________________________________________________________________ This email and any files transmitted with it are intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. If you are not the named addressee you should not disseminate, distribute or copy this e-mail.
Brian: Neither dispute procedure would be effective in combatting this type of abuse. Most customers don't know that they want THE.TLD at the time of the sunrise nor would it be worthwhile for them to pay the costs in disputing the name as, unlike a trademark holder, they wouldn't be guaranteed to get the name. Just not realistic. Jon
On Jul 13, 2017, at 5:16 PM, Winterfeldt, Brian J. <BWinterfeldt@mayerbrown.com> wrote:
We completely agree that there is a world of difference between speculative token users versus world famous brand owners.
We also note the numerous challenge procedures already in existence to address mere token use, including trademark cancellation actions at the national level, the Clearinghouse dispute resolution procedure, and sunrise dispute resolution procedures at the registry level. Perhaps the WG should seek out data about how interested parties might be incentivized to actually use the these processes.
Thank you,
Brian
Brian J. Winterfeldt Co-Head of Global Brand Management and Internet Practice Mayer Brown LLP
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Thursday, July 13, 2017 4:17 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Thanks Georges. Unfortunately, the speculators you refer to are actual trademark holders with equal rights in the TMCH as Disney, Renault, BMW, etc. You are absolutely correct that we need to resolve the dichotomy between the two groups or leave it to the market to resolve. Jon
On Jul 13, 2017, at 3:33 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
Jon: I am not denying anything. What I object to is folks claiming widespread abuse by trademark owners with little to no evidence. The only evidence has been about domainers and speculators going out to register some marks for pencils and the like and then using such to register a handful of domain names in the new gtlds. Some want to lump genuine trademark owners with these speculators to basically try to gut both the Sunrise and claims notices protections. If the only evidence is a guy who registered “the” to obtain some domains in the new gtlds based on “the” and a party that registered common word trademarks for pencils to obtain a handful of domain names, then I think it is apparent that any claimed abuse is by speculators not real bona fide trademark owners. As an aside, I am somewhat surprised that some folks can’t seem to see the difference (or choose to ignore the difference) between a genuine trademark owner that offers real goods and services under a trademark as part of a business based on the brands and services (e.g. DISNEY, RENAULT, BMW, PEPSI, SAMSUNG etc.) versus someone who registers marks for pencils for the sole purpose of speculating in domain names. So instead of embarking on a data witch hunt to try and find things to gut the system with, I do agree with you and others that we should work to try and address and fix the bumps we know of – such as the limited speculator problem that has surfaced. <>
Georges
From: Jon Nevett [mailto:jon@donuts.email <mailto:jon@donuts.email>] Sent: Thursday, July 13, 2017 10:25 AM To: Nahitchevansky, Georges Cc: Paul Keating; Kurt Pritz; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedoma...>
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedoma...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
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 Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt ________________ Kurt Pritz kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcommunity.i...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com...>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
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Jon, Georges, There is some precedent for addressing this, namely in the LRO and UDRP context. As has been pointed out many times on this list, including by Brian Winterfeldt in reaction to this string, there are challenge processes built into this TMCH/Sunrise system, and of course at national trademark offices. Perhaps we might look at better integrating the below criteria into the former (TMCH challenges)? In section 3.5.2 of the AGB (http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12-en....), several relevant criteria are as follows: (2) Whether the objector’s acquisition and use of rights in the mark has been bona fide. (5) Whether and to what extent the applicant has used, or has made demonstrable preparations to use, the sign corresponding to the gTLD in connection with a bona fide offering of goods or services or a bona fide provision of information in a way that does not interfere with the legitimate exercise by the objector of its mark rights. (6) Whether the applicant has marks or other intellectual property rights in the sign corresponding to the gTLD, and, if so, whether any acquisition of such a right in the sign, and use of the sign, has been bona fide, and whether the purported or likely use of the gTLD by the applicant is consistent with such acquisition or use. (7) Whether and to what extent the applicant has been commonly known by the sign corresponding to the gTLD, and if so, whether any purported or likely use of the gTLD by the applicant is consistent therewith and bona fide. Similarly, at section 2.12 (http://www.wipo.int/amc/en/domains/search/overview3.0/#item212), the WIPO Overview 3.0 states: 2.12 Does a respondent trademark corresponding to a domain name automatically generate rights or legitimate interests? 2.12.1 Panels have recognized that a respondent’s prior registration of a trademark which corresponds to a domain name will ordinarily support a finding of rights or legitimate interests in that domain name for purposes of the second element. 2.12.2 The existence of a respondent trademark does not however automatically confer rights or legitimate interests on the respondent. For example, panels have generally declined to find respondent rights or legitimate interests in a domain name on the basis of a corresponding trademark registration where the overall circumstances demonstrate that such trademark was obtained primarily to circumvent the application of the UDRP or otherwise prevent the complainant’s exercise of its rights (even if only in a particular jurisdiction). Absent evidence of such circumstances indicating pretext however, panels have been reluctant to reject a respondent trademark registration out of hand. Hope that’s useful. Brian From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Thursday, July 13, 2017 10:17 PM To: Nahitchevansky, Georges Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Thanks Georges. Unfortunately, the speculators you refer to are actual trademark holders with equal rights in the TMCH as Disney, Renault, BMW, etc. You are absolutely correct that we need to resolve the dichotomy between the two groups or leave it to the market to resolve. Jon On Jul 13, 2017, at 3:33 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Jon: I am not denying anything. What I object to is folks claiming widespread abuse by trademark owners with little to no evidence. The only evidence has been about domainers and speculators going out to register some marks for pencils and the like and then using such to register a handful of domain names in the new gtlds. Some want to lump genuine trademark owners with these speculators to basically try to gut both the Sunrise and claims notices protections. If the only evidence is a guy who registered “the” to obtain some domains in the new gtlds based on “the” and a party that registered common word trademarks for pencils to obtain a handful of domain names, then I think it is apparent that any claimed abuse is by speculators not real bona fide trademark owners. As an aside, I am somewhat surprised that some folks can’t seem to see the difference (or choose to ignore the difference) between a genuine trademark owner that offers real goods and services under a trademark as part of a business based on the brands and services (e.g. DISNEY, RENAULT, BMW, PEPSI, SAMSUNG etc.) versus someone who registers marks for pencils for the sole purpose of speculating in domain names. So instead of embarking on a data witch hunt to try and find things to gut the system with, I do agree with you and others that we should work to try and address and fix the bumps we know of – such as the limited speculator problem that has surfaced. Georges From: Jon Nevett [mailto:jon@donuts.email] Sent: Thursday, July 13, 2017 10:25 AM To: Nahitchevansky, Georges Cc: Paul Keating; Kurt Pritz; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>[mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184 Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ 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
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Jon, The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses. The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006: Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates) *07 September 2006* While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu', and had 132 similar sunrise applications. This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide. The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers. The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications. The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse." The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark: biG: Una grande società per una grande distribuzione *biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia*. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con *1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.* *Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia* (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi *Canali di Vendita. *Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita. which, courtesy of Google Translate, says something like this: biG: A great company for a large distribution *biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy* . It is characterized by the most extensive distribution network of fresh produce throughout our country by *1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.* *Since 2009 deals with all the Group's product portfolio Lactalis Italy* (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various *Sales Channels. *The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse." The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED. So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business. Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way. We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani. I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done. Greg On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark- clearinghouse-worked-so-well-one-company-got-24-new-gtld- using-the-famous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of- trademarks-of-generic-words/
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
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On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for *two* registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
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-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/ Analysis%20Group%20Revised%20TMCH%20Report%20-%20March% 202017.pdf?version=1&modificationDate=1490349029000&api=v2
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
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The article cited by George Kirikos makes a similar distinction to the one I'm making: After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system. I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches. Interesting. What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc. The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future.... Greg On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates) *07 September 2006*
While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/ radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 ( UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione
*biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia*. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con *1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.*
*Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia* (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi *Canali di Vendita. *Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
*biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy* . It is characterized by the most extensive distribution network of fresh produce throughout our country by *1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.*
*Since 2009 deals with all the Group's product portfolio Lactalis Italy* (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various *Sales Channels. *The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearing house-worked-so-well-one-company-got-24-new-gtld-using- the-famous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-tra demarks-of-generic-words/
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
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On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for *two* registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
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-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/An alysis%20Group%20Revised%20TMCH%20Report%20-%20March%202017. pdf?version=1&modificationDate=1490349029000&api=v2
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
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Greg Interesting post and I'm glad you did some digging. I do wish to point out however that the purpose of the entire sunrise/TMCH process was to protect legitimate trademark holders from cyber squatting. It was never about simply granting expansive rights on a global basis. That said the issue of abuse for me is not so much that people are gaming the system. It is that they are gaming the system to achieve an unintended result - perpetual exclusive global rights to a mark without any requirement that it be used as a mark. IMho the design is flawed in allowing such marks to be registered in the first place via a sunrise process. An honest view is that the UDRP was created to prevent proven abuse of a mark. The TMCH is fit for purpose only in terms of its notification system - placing domain registrants on notice and thus preventing the domain registrant from prevailing on bad faith by claiming ignorance. If we halted all TMCH use for sunrise purposes I see no huge loss for trademark holders. And such would resolve the underlying problematic issue - the use of the TMCH in the context of providing a preemptive, perpetual, globally exclusive right to a domain name that far exceeds any right granted by any trademark law or treaty. Sincerely, Paul Keating, Esq.
On Jul 17, 2017, at 8:31 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases (Legal updates)
07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.
Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.
Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets.
Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com
+1.310.400.4184
Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com
D: +44 20 7421 8255
T: +44 20 7421 8299
M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269
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Paul: Just a quick response on your point that halting the TMCH for sunrise purposes would be no great loss to trademark holders. Suggesting that the UDRP is adequate in of itself, misses the point as to what the harm would be to trademark holders. Obtaining registrations of domains that correlate to a bona fide mark is way less expensive than the cost of having to pursue squatters via a UDRP, lawsuits, demand letters of the like. The reality is that most brand owners do not have unlimited budgets and so I believe you could readily establish that what brand owners generally register are domains in extensions that correlate to their businesses and likely infringement situations. The sunrise is a vital part of securing protections. If you assume 100 bona fide sunrise registrations per extension (registrations that correlate to trademarks that are actually in use), and of those 50 get squatted on because there is no TMCH, then assuming the cost on investigating, preparing and filing a UDRP complaint to be $4000, the cost would be $200,000 per extension. If you assume the conservative number of 500 new gTLD extensions involved, the cost would be $100 million. Ultimately that cost likely filters down to consumers, so it seems that having a sunrise period in the end is a cost saver and a far more efficient way of proceeding Georges [Kilpatrick Townsend & Stockton LLP] Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 | fax 212 775 8820 ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com> | My Profile<http://www.kilpatricktownsend.com/en/Who%20We%20Are/Professionals/N/Nahitche...> | vCard<http://www.kilpatricktownsend.com/_assets/vcards/professionals/Nahitchevansk...> ________________________________ From: gnso-rpm-wg-bounces@icann.org [gnso-rpm-wg-bounces@icann.org] on behalf of Paul Keating [paul@law.es] Sent: Monday, July 17, 2017 6:05 AM To: Greg Shatan Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Greg Interesting post and I'm glad you did some digging. I do wish to point out however that the purpose of the entire sunrise/TMCH process was to protect legitimate trademark holders from cyber squatting. It was never about simply granting expansive rights on a global basis. That said the issue of abuse for me is not so much that people are gaming the system. It is that they are gaming the system to achieve an unintended result - perpetual exclusive global rights to a mark without any requirement that it be used as a mark. IMho the design is flawed in allowing such marks to be registered in the first place via a sunrise process. An honest view is that the UDRP was created to prevent proven abuse of a mark. The TMCH is fit for purpose only in terms of its notification system - placing domain registrants on notice and thus preventing the domain registrant from prevailing on bad faith by claiming ignorance. If we halted all TMCH use for sunrise purposes I see no huge loss for trademark holders. And such would resolve the underlying problematic issue - the use of the TMCH in the context of providing a preemptive, perpetual, globally exclusive right to a domain name that far exceeds any right granted by any trademark law or treaty. Sincerely, Paul Keating, Esq. On Jul 17, 2017, at 8:31 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: The article cited by George Kirikos makes a similar distinction to the one I'm making: After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system. I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches. Interesting. What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc. The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future.... Greg On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Jon, The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses. The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006: Memorex wins in first wave of '.eu' cybersquatting cases<http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates) 07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu<http://memorex.eu>', and had 132 similar sunrise applications. This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide. The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers. The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com<http://www.openprovider.com>). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications. The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse." The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark: biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali. Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita. which, courtesy of Google Translate, says something like this: biG: A great company for a large distribution biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits. Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse." The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED. So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business. Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way. We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani. I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done. Greg On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>> wrote: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184<tel:(310)%20400-4184> Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255<tel:+44%2020%207421%208255> T: +44 20 7421 8299<tel:+44%2020%207421%208299> M: +44 7971 661175<tel:+44%207971%20661175> -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269<tel:(416)%20588-0269> http://www.leap.com/ On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269<tel:(416)%20588-0269> http://www.leap.com/ _______________________________________________ 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
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Hi folks, On Mon, Jul 17, 2017 at 9:19 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
If you assume 100 bona fide sunrise registrations per extension (registrations that correlate to trademarks that are actually in use), and of those 50 get squatted on because there is no TMCH, then assuming the cost on investigating, preparing and filing a UDRP complaint to be $4000, the cost would be $200,000 per extension. If you assume the conservative number of 500 new gTLD extensions involved, the cost would be $100 million. Ultimately that cost likely filters down to consumers, so it seems that having a sunrise period in the end is a cost saver and a far more efficient way of proceeding
Of course, those alarmist assumptions (50% cybersquatting rate) don't match the actual cybersquatting experience in the post-sunrise landrush periods, which is not surprising given that they're coming from someone who repeatedly denied that there was any abuse of the TMCH to begin with. When I proposed elimination of the sunrise period back in April, which started a long thread: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001509.html I used a more realistic estimate of 2% (which is still above the rate actually experienced). Compared with the estimated cost savings of $10 million/yr from elimination of the TMCH, TM holders would be saving money on an overall basis. Note that I even suggested that since those sunrise registrations would shift into the beginning part of landrush, as a "horse trade" that there could be additional protections imposed by raising the bar slightly for those early landrush registrants, e.g. "loser pays" for any UDRPs. Of course, it still perplexes me as to why there is not greater utilization of the ACPA $100K damages route, to actually send a stronger message, like Verizon and others have done. There was a thread on one domain forum about how Facebook won a UDRP against a company in 2011: https://www.namepros.com/threads/domainmarket-com-mike-manns-domains.1030091... (post #18 in that thread) http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2011-0516 Yet that company still apparently owns Facebook-related domains, e.g. https://whois.domaintools.com/facebookservices.com (more listed in that thread) Why wouldn't Facebook try to obtain $100,000 x the number of domains being allegedly cybersquatted (and potentially triple damages, in some scenarios, plus legal costs), rather than *pay* $1,500+ for a UDRP? It doesn't make sense to me at all. As long as those who cybersquat can do so with little actual downside, you're not going to see a reduction by the repeat offenders. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George K: You need to read my emails more carefully, as you misstate what I have said in the past. Look I get it that you want to get rid of sunrise and claims. Your justifications, however, do not hold up. Cybersquatting is a problem and it costs brand owners, law enforcement, consumers etc. a bunch of money every year. This is not about being alarmist, but stating a fact that there are real costs involved. I know you want to pretend they do not exist. That's your choice, but I do not agree. When you have folks that basically want to sweep that reality under the rug, you have to point out those costs and the ultimate benefits of having sunrise and claims RPMs. -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Monday, July 17, 2017 10:18 AM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi folks, On Mon, Jul 17, 2017 at 9:19 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
If you assume 100 bona fide sunrise registrations per extension (registrations that correlate to trademarks that are actually in use), and of those 50 get squatted on because there is no TMCH, then assuming the cost on investigating, preparing and filing a UDRP complaint to be $4000, the cost would be $200,000 per extension. If you assume the conservative number of 500 new gTLD extensions involved, the cost would be $100 million. Ultimately that cost likely filters down to consumers, so it seems that having a sunrise period in the end is a cost saver and a far more efficient way of proceeding
Of course, those alarmist assumptions (50% cybersquatting rate) don't match the actual cybersquatting experience in the post-sunrise landrush periods, which is not surprising given that they're coming from someone who repeatedly denied that there was any abuse of the TMCH to begin with. When I proposed elimination of the sunrise period back in April, which started a long thread: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001509.html I used a more realistic estimate of 2% (which is still above the rate actually experienced). Compared with the estimated cost savings of $10 million/yr from elimination of the TMCH, TM holders would be saving money on an overall basis. Note that I even suggested that since those sunrise registrations would shift into the beginning part of landrush, as a "horse trade" that there could be additional protections imposed by raising the bar slightly for those early landrush registrants, e.g. "loser pays" for any UDRPs. Of course, it still perplexes me as to why there is not greater utilization of the ACPA $100K damages route, to actually send a stronger message, like Verizon and others have done. There was a thread on one domain forum about how Facebook won a UDRP against a company in 2011: https://www.namepros.com/threads/domainmarket-com-mike-manns-domains.1030091... (post #18 in that thread) http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2011-0516 Yet that company still apparently owns Facebook-related domains, e.g. https://whois.domaintools.com/facebookservices.com (more listed in that thread) Why wouldn't Facebook try to obtain $100,000 x the number of domains being allegedly cybersquatted (and potentially triple damages, in some scenarios, plus legal costs), rather than *pay* $1,500+ for a UDRP? It doesn't make sense to me at all. As long as those who cybersquat can do so with little actual downside, you're not going to see a reduction by the repeat offenders. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Hi Georges N. On Mon, Jul 17, 2017 at 11:11 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
You need to read my emails more carefully, as you misstate what I have said in the past. Look I get it that you want to get rid of sunrise and claims. Your justifications, however, do not hold up. Cybersquatting is a problem and it costs brand owners, law enforcement, consumers etc. a bunch of money every year. This is not about being alarmist, but stating a fact that there are real costs involved. I know you want to pretend they do not exist. That's your choice, but I do not agree. When you have folks that basically want to sweep that reality under the rug, you have to point out those costs and the ultimate benefits of having sunrise and claims RPMs.
1. Actually, I did read your emails carefully, perhaps more carefully than you wrote them. See the point made in my prior email: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002225.html re: the distinction between "evidence" and "proof". 2. It's difficult to suggest that I've pretended real costs do not exist, when in my email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001509.html (which I had linked to when replying to your analysis) I assigned an even *higher* cost to the UDRP ($5,000) than you did in your own analysis: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002218.html which instead used a figure of $4,000. I don't deny the costs and benefits -- I've instead been carefully trying to weigh them to get to the best policy choices, instead of using wild assumptions like a 50% cybersquatting rate to "put a finger on the scale" to change the balance. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Sunrise registrations have been around since the first round of expansion almost some 15 years ago. Sunrise registrations are nothing new. In fact, given the premium pricing model used by most registrars and registries for such registrations, I think there is a very good chance that most registries would offer Sunrise even if it wasn’t mandated. In addition, the use requirement for Sunrise registrations is new to the process and was designed to thwart gaming. Obviously, that improvement has not yielded the intended result. [tps://inside.corp.adobe.com/content/dam/brandcenter/images/image002.gif] J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Trademarks 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com From: <gnso-rpm-wg-bounces@icann.org> on behalf of "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Monday, July 17, 2017 at 6:19 AM To: Paul Keating <paul@law.es>, Greg Shatan <gregshatanipc@gmail.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Paul: Just a quick response on your point that halting the TMCH for sunrise purposes would be no great loss to trademark holders. Suggesting that the UDRP is adequate in of itself, misses the point as to what the harm would be to trademark holders. Obtaining registrations of domains that correlate to a bona fide mark is way less expensive than the cost of having to pursue squatters via a UDRP, lawsuits, demand letters of the like. The reality is that most brand owners do not have unlimited budgets and so I believe you could readily establish that what brand owners generally register are domains in extensions that correlate to their businesses and likely infringement situations. The sunrise is a vital part of securing protections. If you assume 100 bona fide sunrise registrations per extension (registrations that correlate to trademarks that are actually in use), and of those 50 get squatted on because there is no TMCH, then assuming the cost on investigating, preparing and filing a UDRP complaint to be $4000, the cost would be $200,000 per extension. If you assume the conservative number of 500 new gTLD extensions involved, the cost would be $100 million. Ultimately that cost likely filters down to consumers, so it seems that having a sunrise period in the end is a cost saver and a far more efficient way of proceeding Georges [ilpatrick Townsend & Stockton LLP] Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 | fax 212 775 8820 ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com> | My Profile<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.kilpatri...> | vCard<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.kilpatri...> ________________________________ From: gnso-rpm-wg-bounces@icann.org [gnso-rpm-wg-bounces@icann.org] on behalf of Paul Keating [paul@law.es] Sent: Monday, July 17, 2017 6:05 AM To: Greg Shatan Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Greg Interesting post and I'm glad you did some digging. I do wish to point out however that the purpose of the entire sunrise/TMCH process was to protect legitimate trademark holders from cyber squatting. It was never about simply granting expansive rights on a global basis. That said the issue of abuse for me is not so much that people are gaming the system. It is that they are gaming the system to achieve an unintended result - perpetual exclusive global rights to a mark without any requirement that it be used as a mark. IMho the design is flawed in allowing such marks to be registered in the first place via a sunrise process. An honest view is that the UDRP was created to prevent proven abuse of a mark. The TMCH is fit for purpose only in terms of its notification system - placing domain registrants on notice and thus preventing the domain registrant from prevailing on bad faith by claiming ignorance. If we halted all TMCH use for sunrise purposes I see no huge loss for trademark holders. And such would resolve the underlying problematic issue - the use of the TMCH in the context of providing a preemptive, perpetual, globally exclusive right to a domain name that far exceeds any right granted by any trademark law or treaty. Sincerely, Paul Keating, Esq. On Jul 17, 2017, at 8:31 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: The article cited by George Kirikos makes a similar distinction to the one I'm making: After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system. I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fdomainnamewire.com%2F2014%2F01%2F31%2Fdonuts-sunrise-data%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=lKS2WrqBj9T7Yt0slvPbI3wrfqVIP3XqT%2BhwZA1%2FMMQ%3D&reserved=0>. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches. Interesting. What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc. The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future.... Greg On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Jon, The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses. The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006: Memorex wins in first wave of '.eu' cybersquatting cases<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.worldtra...> (Legal updates) 07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmemorex.eu&d...>', and had 132 similar sunrise applications. This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide. The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers. The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.openprov...>). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.openprovider.nl&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=ZWQKrijHQpkz8xlcHaErsu7whwMzaPAYLyu22%2FGTw5A%3D&reserved=0> https://www.openprovider.co.uk<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.openprovider.co.uk&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=1p0TgPsmc3rYes%2Beit69dMLvrFdr%2FnTjoFRZtKPeFo8%3D&reserved=0> https://www.openprovider.es<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.openprovider.es&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=vPaeh03PUhxW89C%2F%2Feu%2Bx8%2FcmuHKixjSBYsX0X9KgcA%3D&reserved=0>" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications. The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.global.com%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=4lOyhXZMB%2BRyhyhZVCnp2IYunmFwpnwpIHndWH2vbf8%3D&reserved=0>) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio)<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FGold_(radio)&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=XC8%2BvbB1WAqflA9t1WupeUaCvke8sHf0BQKUyELtRPM%3D&reserved=0> or http://www.global.com/radio/gold/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.global.com%2Fradio%2Fgold%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=3M05b0xbOUWDHYHfvdUAu%2Bv86ICskf%2FzwRqnJweNkJY%3D&reserved=0>) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse." The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.gruppolactalisitalia.com%2Flocator.cfm%3Fsectionid%3D974&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=g08%2BVgDIXPTCof7GkeXIoh%2BMkWJvBZbqO3QcPyohc%2FA%3D&reserved=0> reveals the following about the business carried out under this mark: biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali. Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita. which, courtesy of Google Translate, says something like this: biG: A great company for a large distribution biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits. Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse." The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED. So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business. Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way. We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani. I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done. Greg On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>> wrote: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the/<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedomains.com%2F2017%2F02%2F01%2Fthe-trademark-clearinghouse-worked-so-well-one-company-got-24-new-gtld-using-the-famous-trademark-the%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=jmAm4cacsj8yEhJ6%2Fa8%2FimqGJ2q8zuqELZlUF0NTefc%3D&reserved=0> https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-generic-words/<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.thedomains.com%2F2014%2F03%2F22%2Ftmch-has-plenty-of-trademarks-of-generic-words%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=uRT3QhbKuFNoW22jwXbQFoguSPqXsCkuCIhqlqMfrJM%3D&reserved=0> On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money. From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Well i want to do a short review here. The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public. 1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions. This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus. 2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue. Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH. Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved. The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data. I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on. If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise. Anyone willing to work on this with me? Sent from my iPad On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com<mailto:kurt@kjpritz.com>> wrote: I agree with Susan. I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time. We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices. George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis. Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating. Kurt ________________ Kurt Pritz kurt@kjpritz.com<mailto:kurt@kjpritz.com> +1.310.400.4184<tel:(310)%20400-4184> Skype: kjpritz On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern: Page 7: "However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect." Page 16: "These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe." I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy. We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered. Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255<tel:+44%2020%207421%208255> T: +44 20 7421 8299<tel:+44%2020%207421%208299> M: +44 7971 661175<tel:+44%207971%20661175> -----Original Message----- From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hi again, Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See: https://community.icann.org/download/attachments/64066042/Analysis%20Group%20Revised%20TMCH%20Report%20-%20March%202017.pdf?version=1&modificationDate=1490349029000&api=v2<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcommunity.icann.org%2Fdownload%2Fattachments%2F64066042%2FAnalysis%2520Group%2520Revised%2520TMCH%2520Report%2520-%2520March%25202017.pdf%3Fversion%3D1%26modificationDate%3D1490349029000%26api%3Dv2&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C1%7C636358943847411105&sdata=h80vj2fvfE0IbPCT83GY6xhRo67X3U8RTo9RgJ1jZrU%3D&reserved=0> (a) page 17 (footnote 55) ""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed." (b) page 18, note [2] "[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average). This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system." Sincerely, George Kirikos 416-588-0269<tel:(416)%20588-0269> http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=NFIqpBigXLlsCvCEZV5%2BMS2OJ0dZfm9M3Htk2vsJhJs%3D&reserved=0> On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org<mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017: ... Jeff Neuman:My belief is that we have a huge rate of people abandoning is because (i) registrars were mining the system, (ii) registrants were mining the system to see what was valuable, and to a lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group would have had it, to generate their reports), one could filter such "mining" by examining abandonment rates by (1) registrar and (2) by time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out their queries across all registrars equally. It would be easy to identify the outliers. Furthermore, registrants would be also focused on a few registrars that permit those bulk lookups, and they wouldn't spread their queries over time equally --- they'd be focused at the launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e. Registrar 1, Registrar 2, etc.), if there are any concerns about revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS access to those who are "mining" that data. One can use similar detection techniques in this instance.
Sincerely,
George Kirikos 416-588-0269<tel:(416)%20588-0269> http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=NFIqpBigXLlsCvCEZV5%2BMS2OJ0dZfm9M3Htk2vsJhJs%3D&reserved=0> _______________________________________________ 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7Cde1095736376461d13ac08d4cd167c11%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636358943847411105&sdata=kBMUMc5cwjbPrGHMUkaB5KOngRdq1GW7u2sFmplH5qg%3D&reserved=0>
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On 17/7/17 3:05 am, Paul Keating wrote:
If we halted all TMCH use for sunrise purposes I see no huge loss for trademark holders. And such would resolve the underlying problematic issue - the use of the TMCH in the context of providing a preemptive, perpetual, globally exclusive right to a domain name that far exceeds any right granted by any trademark law or treaty.
Very well put. Just a reminder that there is already a proposal on the table to eliminate the Sunrise. From what I can tell we haven't officially come to discussing it yet but I trust that we will. -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org jmalcolm@eff.org Tel: 415.436.9333 ext 161 :: Defending Your Rights in the Digital World :: Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
For the event this is discussed: This would not only be a loss for trademark owners, who would solely be left to resort to curative RPMs, but for consumers who would be harmed in the meantime, because brand owners could not get ahead of abusive registrations that could be used for fraud such as phishing schemes or distributing malware. In my view it is imperative that this public policy angle not be lost in the noise of protecting speculators from other speculators. ________________________________________ From: gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org> on behalf of Jeremy Malcolm <jmalcolm@eff.org> Sent: Monday, July 17, 2017 7:29 PM To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) On 17/7/17 3:05 am, Paul Keating wrote:
If we halted all TMCH use for sunrise purposes I see no huge loss for trademark holders. And such would resolve the underlying problematic issue - the use of the TMCH in the context of providing a preemptive, perpetual, globally exclusive right to a domain name that far exceeds any right granted by any trademark law or treaty.
Very well put. Just a reminder that there is already a proposal on the table to eliminate the Sunrise. From what I can tell we haven't officially come to discussing it yet but I trust that we will. -- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://eff.org jmalcolm@eff.org Tel: 415.436.9333 ext 161 :: Defending Your Rights in the Digital World :: Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Greg: Thanks for your analysis. My take from your email is that you were able to poke holes in a few examples of abuse cited by a blogger, but then end up agreeing that there was abuse in some instances, but maybe not in every instance cited. Obviously, these were representative examples and not an exhaustive list. The point of citing the articles was to respond the email posts of the folks denying that there was any such abuse. So now that we have agreement on the not so incredible proposition that there was some speculator abuse of the TMCH/sunrise process, the question among many others is what, if anything, to do about it. I look forward to those constructive conversations. Best, Jon
On Jul 17, 2017, at 2:31 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/ <http://domainnamewire.com/2014/01/31/donuts-sunrise-data/>. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates)
07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu <http://memorex.eu/>', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com <http://www.openprovider.com/>). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl <https://www.openprovider.nl/> https://www.openprovider.co.uk <https://www.openprovider.co.uk/> https://www.openprovider.es <https://www.openprovider.es/>" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/ <http://www.global.com/>) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) <https://en.wikipedia.org/wiki/Gold_(radio)> or http://www.global.com/radio/gold/ <http://www.global.com/radio/gold/>) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 <http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974> reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.
Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.
Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets.
Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...>
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “ <>abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
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 Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 <tel:(310)%20400-4184> Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 <tel:+44%2020%207421%208255> T: +44 20 7421 8299 <tel:+44%2020%207421%208299> M: +44 7971 661175 <tel:+44%207971%20661175>
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <tel:(416)%20588-0269> http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
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Jon, Can you point me to the emails of folks denying that there was any TMCH abuse? Your email was responding to one from Georges, which stated "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist." Georges is saying that "alleged widespread abuse" doesn't exist -- not that no abuse exists. I'm not trying to be provocative or nit-picky -- just trying to understand the email "record." More importantly, I look forward to constructive conversations as well. Thanks. Greg On Mon, Jul 17, 2017 at 8:15 AM, Jon Nevett <jon@donuts.email> wrote:
Greg:
Thanks for your analysis. My take from your email is that you were able to poke holes in a few examples of abuse cited by a blogger, but then end up agreeing that there was abuse in some instances, but maybe not in every instance cited. Obviously, these were representative examples and not an exhaustive list. The point of citing the articles was to respond the email posts of the folks denying that there was any such abuse. So now that we have agreement on the not so incredible proposition that there was some speculator abuse of the TMCH/sunrise process, the question among many others is what, if anything, to do about it. I look forward to those constructive conversations.
Best,
Jon
On Jul 17, 2017, at 2:31 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates) *07 September 2006*
While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione
*biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia*. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con *1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.*
*Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia* (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi *Canali di Vendita. *Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
*biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy* . It is characterized by the most extensive distribution network of fresh produce throughout our country by *1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.*
*Since 2009 deals with all the Group's product portfolio Lactalis Italy* (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various *Sales Channels. *The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearing house-worked-so-well-one-company-got-24-new-gtld-using-the- famous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-tra demarks-of-generic-words/
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
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Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for *two* registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com
D: +44 20 7421 8255 <+44%2020%207421%208255>
T: +44 20 7421 8299 <+44%2020%207421%208299>
M: +44 7971 661175 <+44%207971%20661175>
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/An alysis%20Group%20Revised%20TMCH%20Report%20-%20March%202017. pdf?version=1&modificationDate=1490349029000&api=v2
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
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Greg: You could go back and check the record as easily as I could and I have better things to do. If you are saying that no one is denying that there was abuse, but just arguing on how widespread it was, that's fine with me. Jon
On Jul 17, 2017, at 10:03 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
Can you point me to the emails of folks denying that there was any TMCH abuse? Your email was responding to one from Georges, which stated "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist."
Georges is saying that "alleged widespread abuse" doesn't exist -- not that no abuse exists. I'm not trying to be provocative or nit-picky -- just trying to understand the email "record."
More importantly, I look forward to constructive conversations as well.
Thanks.
Greg
On Mon, Jul 17, 2017 at 8:15 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Greg:
Thanks for your analysis. My take from your email is that you were able to poke holes in a few examples of abuse cited by a blogger, but then end up agreeing that there was abuse in some instances, but maybe not in every instance cited. Obviously, these were representative examples and not an exhaustive list. The point of citing the articles was to respond the email posts of the folks denying that there was any such abuse. So now that we have agreement on the not so incredible proposition that there was some speculator abuse of the TMCH/sunrise process, the question among many others is what, if anything, to do about it. I look forward to those constructive conversations.
Best,
Jon
On Jul 17, 2017, at 2:31 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/ <http://domainnamewire.com/2014/01/31/donuts-sunrise-data/>. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates)
07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu <http://memorex.eu/>', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com <http://www.openprovider.com/>). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl <https://www.openprovider.nl/> https://www.openprovider.co.uk <https://www.openprovider.co.uk/> https://www.openprovider.es <https://www.openprovider.es/>" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/ <http://www.global.com/>) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) <https://en.wikipedia.org/wiki/Gold_(radio)> or http://www.global.com/radio/gold/ <http://www.global.com/radio/gold/>) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 <http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974> reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.
Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.
Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets.
Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...>
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “ <>abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
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 Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 <tel:(310)%20400-4184> Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 <tel:+44%2020%207421%208255> T: +44 20 7421 8299 <tel:+44%2020%207421%208299> M: +44 7971 661175 <tel:+44%207971%20661175>
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <tel:(416)%20588-0269> http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
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Jon, I am saying: 1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people. 2. "Widespread" is an incorrect and inappropriate characterization of abuse of the TMCH, so I'm definitely not "arguing on how widespread it was." I would consider abuse to be "isolated" or "relatively rare." Nonetheless, I'm concerned about it, since it harms all the legitimate participants (brandowners, investors, other good-faith potential applicants, etc.) and reduces trust in the system. Of course, it also reduces trust (unnecessarily) when unfounded claims of "widespread" abuse are circulated and then believed by others. I think that's 'nuff said about that. I prefer to talk about issues, as opposed to talking about how we talk about issues -- but I felt it was sufficiently important to make a plea to accurately represent the facts -- including the positions of the various participants, whether or not one agrees with them. Jon, you are generally a voice of reason and a reasonable voice, so this is not really directed at you. But in this atmosphere, even the most reasonable of us start ratcheting up the rhetoric. I'm not sure where the solutions lie, but I'm fairly sure they do not lie in the direction of more overheated rhetoric..... Greg On Mon, Jul 17, 2017 at 10:14 AM, Jon Nevett <jon@donuts.email> wrote:
Greg: You could go back and check the record as easily as I could and I have better things to do. If you are saying that no one is denying that there was abuse, but just arguing on how widespread it was, that's fine with me. Jon
On Jul 17, 2017, at 10:03 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
Can you point me to the emails of folks denying that there was any TMCH abuse? Your email was responding to one from Georges, which stated "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist."
Georges is saying that "alleged widespread abuse" doesn't exist -- not that no abuse exists. I'm not trying to be provocative or nit-picky -- just trying to understand the email "record."
More importantly, I look forward to constructive conversations as well.
Thanks.
Greg
On Mon, Jul 17, 2017 at 8:15 AM, Jon Nevett <jon@donuts.email> wrote:
Greg:
Thanks for your analysis. My take from your email is that you were able to poke holes in a few examples of abuse cited by a blogger, but then end up agreeing that there was abuse in some instances, but maybe not in every instance cited. Obviously, these were representative examples and not an exhaustive list. The point of citing the articles was to respond the email posts of the folks denying that there was any such abuse. So now that we have agreement on the not so incredible proposition that there was some speculator abuse of the TMCH/sunrise process, the question among many others is what, if anything, to do about it. I look forward to those constructive conversations.
Best,
Jon
On Jul 17, 2017, at 2:31 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates) *07 September 2006*
While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl https://www.openprovider.co.uk https://www.openprovider.es" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) or http://www.global.com/radio/gold/) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione
*biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia*. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con *1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.*
*Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia* (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi *Canali di Vendita. *Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
*biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy* . It is characterized by the most extensive distribution network of fresh produce throughout our country by *1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.*
*Since 2009 deals with all the Group's product portfolio Lactalis Italy* (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various *Sales Channels. *The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets. Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email> wrote:
Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearing house-worked-so-well-one-company-got-24-new-gtld-using-the-f amous-trademark-the/
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-tra demarks-of-generic-words/
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Paul Keating *Sent:* Thursday, July 13, 2017 9:23 AM *To:* Kurt Pritz *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com
+1.310.400.4184 <(310)%20400-4184>
Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for *two* registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com
D: +44 20 7421 8255 <+44%2020%207421%208255>
T: +44 20 7421 8299 <+44%2020%207421%208299>
M: +44 7971 661175 <+44%207971%20661175>
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ic ann.org <gnso-rpm-wg-bounces@icann.org>] On Behalf Of George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/An alysis%20Group%20Revised%20TMCH%20Report%20-%20March%202017. pdf?version=1&modificationDate=1490349029000&api=v2
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
416-588-0269 <(416)%20588-0269>
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Sorry Greg. I have heard a number of folks mention that there was no abuse. Feel free to comb the record if you prefer. Sorry if you want to deny that deniers exist, but what's the point? Moreover, I can't see how you have any basis to opine, at this point, on how widespread the abuse was. I saw it first hand, but even I would like to see the data about it before characterizing it as really widespread or isolated/relatively rare. I just know that there was abuse. I have been an ardent supporter of the sunrise process, but it really bugs me when folks claim things like a 50% cybersquatting rate or claim that there was no abuse of the TMCH at all. Jon
On Jul 17, 2017, at 10:41 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Jon,
I am saying:
1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people.
2. "Widespread" is an incorrect and inappropriate characterization of abuse of the TMCH, so I'm definitely not "arguing on how widespread it was." I would consider abuse to be "isolated" or "relatively rare." Nonetheless, I'm concerned about it, since it harms all the legitimate participants (brandowners, investors, other good-faith potential applicants, etc.) and reduces trust in the system. Of course, it also reduces trust (unnecessarily) when unfounded claims of "widespread" abuse are circulated and then believed by others.
I think that's 'nuff said about that. I prefer to talk about issues, as opposed to talking about how we talk about issues -- but I felt it was sufficiently important to make a plea to accurately represent the facts -- including the positions of the various participants, whether or not one agrees with them. Jon, you are generally a voice of reason and a reasonable voice, so this is not really directed at you. But in this atmosphere, even the most reasonable of us start ratcheting up the rhetoric. I'm not sure where the solutions lie, but I'm fairly sure they do not lie in the direction of more overheated rhetoric.....
Greg
On Mon, Jul 17, 2017 at 10:14 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Greg: You could go back and check the record as easily as I could and I have better things to do. If you are saying that no one is denying that there was abuse, but just arguing on how widespread it was, that's fine with me. Jon
On Jul 17, 2017, at 10:03 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Jon,
Can you point me to the emails of folks denying that there was any TMCH abuse? Your email was responding to one from Georges, which stated "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist."
Georges is saying that "alleged widespread abuse" doesn't exist -- not that no abuse exists. I'm not trying to be provocative or nit-picky -- just trying to understand the email "record."
More importantly, I look forward to constructive conversations as well.
Thanks.
Greg
On Mon, Jul 17, 2017 at 8:15 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Greg:
Thanks for your analysis. My take from your email is that you were able to poke holes in a few examples of abuse cited by a blogger, but then end up agreeing that there was abuse in some instances, but maybe not in every instance cited. Obviously, these were representative examples and not an exhaustive list. The point of citing the articles was to respond the email posts of the folks denying that there was any such abuse. So now that we have agreement on the not so incredible proposition that there was some speculator abuse of the TMCH/sunrise process, the question among many others is what, if anything, to do about it. I look forward to those constructive conversations.
Best,
Jon
On Jul 17, 2017, at 2:31 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
The article cited by George Kirikos makes a similar distinction to the one I'm making:
After spending a week analyzing the terms, reviewing the TMCH rules and talking to people on many sides of the domain ecosystem, I’ve come to this conclusion: for the most part, the common words were applied for by well-meaning companies that are only trying to protect their brands. A handful, however, were registered by people trying to game the system.
I think we could get fairly broad agreement that a method to exclude the "gamers" from the TMCH would be worth pursuing. The gamers mentioned in this latter article are discussed in greater detail in this article: http://domainnamewire.com/2014/01/31/donuts-sunrise-data/ <http://domainnamewire.com/2014/01/31/donuts-sunrise-data/>. Interestingly, it appears to be a New gTLD applicant, their holding company and a related party.... So out of the 3 instances of gaming, one set is from a registry (and associated entities), one is from a registrar, and one is from a company with a long history of gaming TLD launches.
Interesting.
What I don't think is going to get broad agreement is a method to exclude "well-meaning companies that are only trying to protect their brands" like Global Media & Entertainment and Galbani from the TMCH, no matter how much nattering and chattering there is about "generic words" etc.
The sooner we move away from throwing around overreaching claims about So Many Bad Things Happening and move toward solving problem we can agree are real problems, the more likely we are to actually accomplish something in the foreseeable future....
Greg
On Mon, Jul 17, 2017 at 2:14 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: Jon,
The linked articles you provide show the danger of jumping to conclusions about what constitutes an "abuse of the TMCH" and who qualifies as an abuser of the TMCH. Also, what constitutes "plenty" of abuses.
The first article discusses only the sunrise registrations secured by one entity based on their registration of the term THE. The entity, Goallover Limited, seems to be associated with various tools used in buying and maintaining personal data (a/k/a "leads") -- the most prominent being LolaGrove. They seem to have a somewhat legitimate set of businesses, and yet there's no indication they use the word "THE" as a brand in any meaningful way. One would be more shocked if a little more searching didn't reveal that Goallover Limited is not new to this type of scheme. A search reveals the following tidbit from 2006:
Memorex wins in first wave of '.eu' cybersquatting cases <http://www.worldtrademarkreview.com/Daily/Detail.aspx?g=e65decb0-3c4d-427f-9...> (Legal updates)
07 September 2006 While the first round of '.eu' domain name decisions were against the '.eu' registry, trademark owners are now successfully challenging cybersquatters. In Memorex Products Europe Limited v Goallover Limited, the panel was faced with a respondent who had registered the trademark MEMO REX the day before it applied for the domain name 'memorex.eu <http://memorex.eu/>', and had 132 similar sunrise applications.
This does appear to be a form of "TMCH abuse," but its hard to discern what makes their claim to trademark rights bona fide.
The second article casts a wider net. Unfortunately, it captures legitimate brandowners along with likely abusers.
The first one, HOSTING, was registered by a domain name registrar and hosting provider called Hosting Concepts BV, which appears to do business as Openprovider (see, e.g., www.openprovider.com <http://www.openprovider.com/>). On their LinkedIn page they state "Since july 1st 2012 the only brand of Hosting Concepts is: Openprovider: https://www.openprovider.nl <https://www.openprovider.nl/> https://www.openprovider.co.uk <https://www.openprovider.co.uk/> https://www.openprovider.es <https://www.openprovider.es/>" It might be interesting to know how they use HOSTING as a trademark (which they claim is for rubber and plastic products (of unknown type), but not for their actual business, which is hosting). As an apparently legitimate registrar and hosting provider business, it does raise concerns that they appear to have a side-business in filing questionable trademark applications.
The second one, GOLD, is a horse of a different color. The owner, This is Global Limited (now known as Global Media & Entertainment Limited) is a UK based media company (http://www.global.com/ <http://www.global.com/>) which identifies itself as the UK's largest commercial radio business -- one of their "formats", with a number of radio stations operating under the mark, is called GOLD (see https://en.wikipedia.org/wiki/Gold_(radio) <https://en.wikipedia.org/wiki/Gold_(radio)> or http://www.global.com/radio/gold/ <http://www.global.com/radio/gold/>) It's subtitled "Greatest Hits of All Time," and appears to be an "oldies" format. They filed for the trademark back in 2009 (UK00002515362). This is an entirely legitimate trademark and use, being unfairly accused of "TMCH abuse."
The next one "biG" is also a "false positive" for "TMCH abuse." biG is a trademark of S.p.A. Egidio Galbani, a large Italian cheesemaker, with sales in numerous countries, doing business as Gruppo Lactalis. Their website http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974 <http://www.gruppolactalisitalia.com/locator.cfm?sectionid=974> reveals the following about the business carried out under this mark:
biG: Una grande società per una grande distribuzione biG Srl è la società nata nel 2004 per la distribuzione e vendita di tutti i prodotti Galbani in Italia. È caratterizzata dal più capillare network di distribuzione di prodotti freschi su tutto nel nostro Paese con 1.130 tra venditori e agenti,oltre 1.000 camioncini e 108 depositi territoriali.
Dal 2009 si occupa di tutto il portafoglio prodotti del Gruppo Lactalis Italia (tutti i marchi Galbani, Vallelata, Invernizzi, Locatelli, Cademartori, Président) per garantirne una gestione integrata e sinergica ed una maggiore efficienza e sviluppo nei diversi Canali di Vendita. Il mercato dei formaggi in Italia rappresenta infatti il 1° a valore nel reparto del fresco e garantisce il maggior contributo alla crescita di fatturato dei vari punti vendita.
which, courtesy of Google Translate, says something like this:
biG: A great company for a large distribution
biG Srl is the company formed in 2004 for the distribution and sale of all Galbani products in Italy . It is characterized by the most extensive distribution network of fresh produce throughout our country by 1130 between sellers and agents, more than 1,000 trucks and 108 local deposits.
Since 2009 deals with all the Group's product portfolio Lactalis Italy (all Galbani brands, Vallelata, Invernizzi, Locatelli, Cademartori, Président) to ensure an integrated and synergic management and greater efficiency and development in various Sales Channels. The cheese market in Italy represents the 1st value in the fresh department and ensures the greatest contribution to growth in sales of the various sales outlets.
Again, an entirely legitimate trademark and trademark owner being tarred by false charges of "TMCH abuse."
The fourth and last mark cited is the infamous THE registered by the infamous GOALLOVER LIMITED.
So, the "plenty" of TMCH abuses adds up to one attempt by a registrar and hosting provider to claim the mark HOSTING, one attempt by a serial "gamer" to claim the mark THE, one false accusation against a brandowner for GOLD for a bona fide radio station business and one false accusation against a brandowner for biG for a bona fide food distribution business.
Even more concerning is that these claims are thrown out there and then adopted and further transmitted by people who I sincerely believe are trying to have an informed good-faith discussion about their concerns. Nonetheless, it took me less than an hour to discern that half of the "plenty" of instances were false. That makes it harder than it should be to discuss these concerns in a productive way.
We need to strive for a discussion and a solution that is aimed at actors like OpenProvider and Goallover, which appear to be clear instances of "gaming" rather than bona fide uses of the marks, while not pulling in legitimate brands and brandowners like Global Media & Entertainment and Galbani.
I agree that there is a challenge in creating the right filter that would separate the wheat from the chaff. But that doesn't mean it can't be done.
Greg
On Thu, Jul 13, 2017 at 10:25 AM, Jon Nevett <jon@donuts.email <mailto:jon@donuts.email>> wrote: Georges: Denying that there were abuses of the TMCH won't help either. There have been plenty presented to date (see below). Let's try to solve the problems and not deny that they exist. Obviously, there is some abandonment based on the notices -- let's work to minimize the rate of abandonment by legitimate registrants without unduly hurting the protections afforded to legitimate rights holders. Jon
https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-... <https://www.thedomains.com/2017/02/01/the-trademark-clearinghouse-worked-so-...>
https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener... <https://www.thedomains.com/2014/03/22/tmch-has-plenty-of-trademarks-of-gener...>
On Jul 13, 2017, at 9:37 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “ <>abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money.
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 Paul Keating Sent: Thursday, July 13, 2017 9:23 AM To: Kurt Pritz Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Well i want to do a short review here.
The issue. Is the tmch function resulting in overkill - in other words is it overly protecting mark holders at the expense of the public.
1st many were asking for a list of marks registered with the tmch. The point here was to understand what type of marks were actually being registered and under what conditions.
This was met with loud objections by a few members who asserted confidentiality. I seem to recall that the tmch agreement itself contradicted any assertion of confidentiality. I suggested the list be made known without indication of registrant identification. I also suggested the list be provided to a 3rd party under confidentiality so they could report to the group. There was no vote or attempt to measure consensus.
2nd we then considered the post-notice abandonment rate. This was a 2nd best data source trying to figure out the same original issue.
Now it turns out that the data set was not stellar. People are not asserting this should be abandoned. This argument is being made by the same small group that objected to release of the marks registered with TMCH.
Now the suggestion is to abandon any investigation into what is in TMCH or the statistical abandonment rate and instead look at the language of the notice itself. This does not solve the problem. It is simply unacceptable to allow abusive and overreaching tmch registrations just because the notice can be watered down or improved.
The problem remains. In order to measure the success or appropriateness of the TMCH (which this group is required to do) we must have access to the underlying data.
I remain willing to work with people to provide reasonable protection for confidentiality. I reiterate my suggestions that the data be anonymized or provided to a neutral expert to review, categorize and report on.
If this is not acceptable, then the only alternative is for someone to essentially reverse engineer the list by trial and error. This can certainly be done on an automated basis. However, neither side would win by this. It would be a silly waste of time and resources. It would also result in publication of the results. It seems neither side would want such a result. I am sure we can find a compromise.
Anyone willing to work on this with me?
Sent from my iPad
On 13 Jul 2017, at 12:22, Kurt Pritz <kurt@kjpritz.com <mailto:kurt@kjpritz.com>> wrote:
I agree with Susan.
I think the Analysis Group was at least negligent in their duties when they reported the 93% abandonment rate. It was misleading despite the disclaimers attached. Whenever any number is reported, it tends to gain traction and, as a result, we find ourselves struggling to attach some type of meaning to it. The Analysis report has led to false conclusions and a waste of time.
We are best off never mentioning the number again. We should agree that we have no understanding, information or data on the issue of how abandonment rate was effected by claims notices.
George has identified a couple ways to approximate the effect. If additional data gathering is undertaken along the lines that George or anyone else suggests, that work would be to get an understanding of abandonment rates and not to test the reported number by Analysis.
Susan’s last and penultimate paragraphs below put it best. In addition to identifying data be collected in the next round, we could look at the language and display of the current notices to ensure that the notices are designed to achieve the goal of the claims notice program: to properly inform without intimidating.
Kurt
________________
Kurt Pritz
kurt@kjpritz.com <mailto:kurt@kjpritz.com> +1.310.400.4184 <tel:(310)%20400-4184> Skype: kjpritz
On Jul 13, 2017, at 10:28 AM, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com>> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Page 7:
"However, due to limitations of the data (discussed in more detail below), our analyses of the data require an assumption that each download is associated with a registration attempt (and was not downloaded by a registrar for a purpose unrelated to domain name registrations). If this assumption is incorrect, then our results will exaggerate the size of any observable registration-deterrent Claims Service effect."
Page 16:
"These results should not be relied upon to make policy recommendations. We find that the vast majority of registration attempts are not completed after receiving a Claims Service notification (94% abandonment rate). This abandonment rate seems quite high, however there are several caveats to this result, which include our inability to determine the abandonment rate that would occur if no Claims Service notifications were sent and limitations of our data set, which require us to assume that every registrar download from the TMDB represents a registration attempt.54 We therefore cannot determine whether Claims Service notifications are the direct cause for the abandonment rate that we observe."
I believe this is a fruitless exercise. Analysis Group are meant to be professionals at this, were paid a tidy sum by ICANN to carry out this review, presumably had the benefit of being an independent third party which ought to have removed some of the confidentiality concerns that we have faced, and should have had the support of whatever ICANN contractual provisions there are requiring co-operation in economic studies. They still produced a report which repeatedly cites the paucity of data, the resulting reliance on assumptions, and that their “results” were consequently inadequate and should not be relied upon to make policy.
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
Susan Payne
Head of Legal Policy | Valideus Ltd
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 <tel:+44%2020%207421%208255> T: +44 20 7421 8299 <tel:+44%2020%207421%208299> M: +44 7971 661175 <tel:+44%207971%20661175>
-----Original Message----- 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 George Kirikos Sent: 12 July 2017 21:30 To: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)
Hi again,
Just to followup on my prior email, The Analysis Group *already* adjusted the stats to attempt to take into account the "mining" theory that Jeff spoke about. i.e. the 93.7% abandonment figure that we've been talking about is a figure obtained *after* making the adjustments! Without the adjustment (which eliminated 62.2% of the observations), the abandonment rate would have been 99%! See:
https://community.icann.org/download/attachments/64066042/Analysis%20Group%2... <https://community.icann.org/download/attachments/64066042/Analysis%20Group%2...>
(a) page 17 (footnote 55)
""As discussed in Section IV, there are two registrars that averaged downloads of more than 20 trademark strings per download, which is large compared to the average of fewer than five trademark strings in the downloads of other registrars. We also exclude downloads made by ICANN’s monitoring system. The exclusion of the two registrars does not significantly impact our results. Inclusion of the two registrars shows that 99% of registrations are abandoned and 0.5% of completed registrations are disputed."
(b) page 18, note [2]
"[2] A bulk download is defined as a download from the TMCH of multiple strings by the same registrar with exactly the same time stamp. Downloads by two registrars are excluded from this analysis because of a potentially high prevalence of bulk downloads (98.7% and 81.9% of downloads, respectively) by each of these two registrars. The average size of the “bulk downloads” by these two registrars (approximately 23 and 35 strings, respectively) is much larger than the average “bulk download” size of other registrars (other registrars in the Claims Service data download 5 strings or less on average).
This exclusion results in an exclusion of 62.2% of the observations in the original Claims Service data received from IBM after excluding downloads by ICANN's monitoring system."
Sincerely,
George Kirikos
416-588-0269 <tel:(416)%20588-0269> http://www.leap.com/ <http://www.leap.com/>
On Wed, Jul 12, 2017 at 4:10 PM, George Kirikos <icann@leap.com <mailto:icann@leap.com>> wrote:
Hi folks,
Just following up on some statements from today's transcript:
On Wed, Jul 12, 2017 at 3:51 PM, Terri Agnew <terri.agnew@icann.org <mailto:terri.agnew@icann.org>> wrote:
Adobe Connect chat transcript for 12 July 2017:
...
Jeff Neuman:My belief is that we have a huge rate of people
abandoning is because (i) registrars were mining the system, (ii)
registrants were mining the system to see what was valuable, and to a
lesser extent as a result of the claim (either legitimiate or not)
Jeff Neuman:But I cant prove any of those theories
Kathy Kleiman:@Jeff: we have gathered evidence already from
registries; there is probably more
Jeff Neuman:There just is no way to do so on a backwards basis
If one had access to the raw data (and presumably The Analysis Group
would have had it, to generate their reports), one could filter such
"mining" by examining abandonment rates by (1) registrar and (2) by
time relative to the launch date.
i.e. presumably those were "mining" the system were not spreading out
their queries across all registrars equally. It would be easy to
identify the outliers. Furthermore, registrants would be also focused
on a few registrars that permit those bulk lookups, and they wouldn't
spread their queries over time equally --- they'd be focused at the
launch (i.e. the beginning, first few days, etc.) of a TLD.
Of course, if need be, one could anonymize the data by registrar (i.e.
Registrar 1, Registrar 2, etc.), if there are any concerns about
revealing their individual abandonment rates.
Registry operators and registrars both have technology to block WHOIS
access to those who are "mining" that data. One can use similar
detection techniques in this instance.
Sincerely,
George Kirikos
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Hello, On Mon, Jul 17, 2017 at 10:41 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people.
Folks seem to be interpreting "widespread" and "evidence" differently. When Georges says something like: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001506.html "Paul. I don't think you understand the point we are all making. There is no need for the type of review you are asking for. The alleged abuse simply is not there. So apart from being a waste of time, and apart from the confidentiality reasons previously raised, there is no need for this unless one is hell bent on conducting a witch hunt in the name of so-called transparency in order to try and prove what is essentially a negative." I read that as him being in denial of abuse at all existing, widespread or not. i.e. "the alleged abuse simply is not there". But, then there are variations, when he's used the terms "widespread abuse" or "widespread evidence of abuse", e.g. from: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001458.html "Actually it touches on the point here. If you are going to make various arguments of alleged abuse in support of claimed transparency, then it would it is relevant to know whether you are supporting a lack of transparency in the whois side of things where abuse has been rampant. While the TMCH and Whois are different animals a number of the arguments being made here to support transparency have actually been mirrored in the other context and rejected by those seeking opacity. And one major difference between the two situations is that there is widespread evidence of abuse of the whois system whereas here in the TMCH context you do not have evidence of a widespread abuse of the TMCH by brand owners. Nevertheless, you and others persist on wanting to conduct a fishing expedition under the guise of so called "transparency" to try and find some alleged widespread harm that simply does not exist. To many folks on the other side of the aisle, it appears that this is not about transparency but more about some effort to gut existing protections and to obtain the release of confidential information of brand owners as to what they did or did not register. Perhaps this may not be the intent, but we all know that once that information is out the gaming will really begin. Again, perhaps there are tweeks that could be made to improve the current system, but there is no real basis for undertaking the broad review that is being sought and certainly not for undoing the entire existing system." or more recently: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002187.html "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money." (quoted in full, to not be accused of misquoting). Here's the thing, though. When you say something like "the evidence of such alleged widespread abuse has not been presented, because it doesn't exist", that doesn't make any distinction between EVIDENCE and PROOF. Perhaps Georges N. intended to write "proof" instead of "evidence". How do you prove "widespread abuse"? You start by presenting any "evidence of abuse". It's only once you have a LOT of evidence of abuse that you can then say that you have proof that there was "widespread abuse." Georges N. might disagree that the total amount of evidence has yet proven "widespread abuse", but when you start saying "evidence hasn't been presented", that denies the evidence itself of any abuse. We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP. i.e. is the term "widespread" (in percentage terms) somehow applied numerically differently when saying "the cybersquatting problem is widespread", than when saying "there are widespread abuses of the sunrise periods"? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Thanks George for taking the time to find some of the quotes. Let's move on. Jon
On Jul 17, 2017, at 11:44 AM, George Kirikos <icann@leap.com> wrote:
Hello,
On Mon, Jul 17, 2017 at 10:41 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people.
Folks seem to be interpreting "widespread" and "evidence" differently. When Georges says something like:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001506.html
"Paul. I don't think you understand the point we are all making. There is no need for the type of review you are asking for. The alleged abuse simply is not there. So apart from being a waste of time, and apart from the confidentiality reasons previously raised, there is no need for this unless one is hell bent on conducting a witch hunt in the name of so-called transparency in order to try and prove what is essentially a negative."
I read that as him being in denial of abuse at all existing, widespread or not. i.e. "the alleged abuse simply is not there".
But, then there are variations, when he's used the terms "widespread abuse" or "widespread evidence of abuse", e.g. from:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001458.html
"Actually it touches on the point here. If you are going to make various arguments of alleged abuse in support of claimed transparency, then it would it is relevant to know whether you are supporting a lack of transparency in the whois side of things where abuse has been rampant. While the TMCH and Whois are different animals a number of the arguments being made here to support transparency have actually been mirrored in the other context and rejected by those seeking opacity. And one major difference between the two situations is that there is widespread evidence of abuse of the whois system whereas here in the TMCH context you do not have evidence of a widespread abuse of the TMCH by brand owners. Nevertheless, you and others persist on wanting to conduct a fishing expedition under the guise of so called "transparency" to try and find some alleged widespread harm that simply does not exist. To many folks on the other side of the aisle, it appears that this is not about transparency but more about some effort to gut existing protections and to obtain the release of confidential information of brand owners as to what they did or did not register. Perhaps this may not be the intent, but we all know that once that information is out the gaming will really begin. Again, perhaps there are tweeks that could be made to improve the current system, but there is no real basis for undertaking the broad review that is being sought and certainly not for undoing the entire existing system."
or more recently:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002187.html
"I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money."
(quoted in full, to not be accused of misquoting). Here's the thing, though. When you say something like "the evidence of such alleged widespread abuse has not been presented, because it doesn't exist", that doesn't make any distinction between EVIDENCE and PROOF. Perhaps Georges N. intended to write "proof" instead of "evidence". How do you prove "widespread abuse"? You start by presenting any "evidence of abuse". It's only once you have a LOT of evidence of abuse that you can then say that you have proof that there was "widespread abuse." Georges N. might disagree that the total amount of evidence has yet proven "widespread abuse", but when you start saying "evidence hasn't been presented", that denies the evidence itself of any abuse.
We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP. i.e. is the term "widespread" (in percentage terms) somehow applied numerically differently when saying "the cybersquatting problem is widespread", than when saying "there are widespread abuses of the sunrise periods"?
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
To show how we're going 'round in circles, take a look at this email from Brian Beckham back in April, in the same email thread that George links to: Paul, Without intending to shortcut this discussion, or to censor your request, there seems to be a fairly widespread recognition within this working group that there has been some gaming (even if arguably very minimal, given the sunrise registration numbers) by speculators of the TMCH and Sunrise in combination (just as there is recognition that there will be gaming of any system). If you agree that the working group has basically conceded this point, merely for your consideration: Bret and J Scott have put a rough solution on the table; would a more judicious use of our collective time and energy be to look at this, and ways to address your concerns, whatever they may be? Kind regards, Brian Yet once again, we're back dealing with allegations that some see zero abuse. George K. could only find one email that could plausibly read that way; he then bulks up the email with quotes showing that Georges' concern is allegations of "widespread abuse." Based on the totality of emails, its clear that Georges' belief is that there is not widespread abuse, not that there is zero abuse. At this point, asserting that there are those who truly believe there is zero abuse of the TMCH only serves to polarize and derail the discussion. Greg On Mon, Jul 17, 2017 at 11:46 AM, Jon Nevett <jon@donuts.email> wrote:
Thanks George for taking the time to find some of the quotes. Let's move on. Jon
On Jul 17, 2017, at 11:44 AM, George Kirikos <icann@leap.com> wrote:
Hello,
On Mon, Jul 17, 2017 at 10:41 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people.
Folks seem to be interpreting "widespread" and "evidence" differently. When Georges says something like:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001506.html
"Paul. I don't think you understand the point we are all making. There is no need for the type of review you are asking for. The alleged abuse simply is not there. So apart from being a waste of time, and apart from the confidentiality reasons previously raised, there is no need for this unless one is hell bent on conducting a witch hunt in the name of so-called transparency in order to try and prove what is essentially a negative."
I read that as him being in denial of abuse at all existing, widespread or not. i.e. "the alleged abuse simply is not there".
But, then there are variations, when he's used the terms "widespread abuse" or "widespread evidence of abuse", e.g. from:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001458.html
"Actually it touches on the point here. If you are going to make various arguments of alleged abuse in support of claimed transparency, then it would it is relevant to know whether you are supporting a lack of transparency in the whois side of things where abuse has been rampant. While the TMCH and Whois are different animals a number of the arguments being made here to support transparency have actually been mirrored in the other context and rejected by those seeking opacity. And one major difference between the two situations is that there is widespread evidence of abuse of the whois system whereas here in the TMCH context you do not have evidence of a widespread abuse of the TMCH by brand owners. Nevertheless, you and others persist on wanting to conduct a fishing expedition under the guise of so called "transparency" to try and find some alleged widespread harm that simply does not exist. To many folks on the other side of the aisle, it appears that this is not about transparency but more about some effort to gut existing protections and to obtain the release of confidential information of brand owners as to what they did or did not register. Perhaps this may not be the intent, but we all know that once that information is out the gaming will really begin. Again, perhaps there are tweeks that could be made to improve the current system, but there is no real basis for undertaking the broad review that is being sought and certainly not for undoing the entire existing system."
or more recently:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002187.html
"I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money."
(quoted in full, to not be accused of misquoting). Here's the thing, though. When you say something like "the evidence of such alleged widespread abuse has not been presented, because it doesn't exist", that doesn't make any distinction between EVIDENCE and PROOF. Perhaps Georges N. intended to write "proof" instead of "evidence". How do you prove "widespread abuse"? You start by presenting any "evidence of abuse". It's only once you have a LOT of evidence of abuse that you can then say that you have proof that there was "widespread abuse." Georges N. might disagree that the total amount of evidence has yet proven "widespread abuse", but when you start saying "evidence hasn't been presented", that denies the evidence itself of any abuse.
We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP. i.e. is the term "widespread" (in percentage terms) somehow applied numerically differently when saying "the cybersquatting problem is widespread", than when saying "there are widespread abuses of the sunrise periods"?
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
George K - could you explain what you mean by the following: "We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP." How do we know this? Susan Payne Head of Legal Policy | Valideus Ltd E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: 17 July 2017 16:44 To: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) Hello, On Mon, Jul 17, 2017 at 10:41 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
1. I don't believe there was anyone who denied there was any abuse of the TMCH. Viewpoints are polarized enough in the WG; it makes matters worse to portray them as even more polarized than they actually are. This has the secondary problem of "enabling" others to build on these specious claims. Not 3 minutes went by after your email, when George Kirikos leveled the "fake news" allegation at Georges Nehitchevansky that he "repeatedly denied that there was any abuse of the TMCH to begin with." Georges has already stated in this thread that that was not the case, but I guess that was not sufficient for some people.
Folks seem to be interpreting "widespread" and "evidence" differently. When Georges says something like: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001506.html "Paul. I don't think you understand the point we are all making. There is no need for the type of review you are asking for. The alleged abuse simply is not there. So apart from being a waste of time, and apart from the confidentiality reasons previously raised, there is no need for this unless one is hell bent on conducting a witch hunt in the name of so-called transparency in order to try and prove what is essentially a negative." I read that as him being in denial of abuse at all existing, widespread or not. i.e. "the alleged abuse simply is not there". But, then there are variations, when he's used the terms "widespread abuse" or "widespread evidence of abuse", e.g. from: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001458.html "Actually it touches on the point here. If you are going to make various arguments of alleged abuse in support of claimed transparency, then it would it is relevant to know whether you are supporting a lack of transparency in the whois side of things where abuse has been rampant. While the TMCH and Whois are different animals a number of the arguments being made here to support transparency have actually been mirrored in the other context and rejected by those seeking opacity. And one major difference between the two situations is that there is widespread evidence of abuse of the whois system whereas here in the TMCH context you do not have evidence of a widespread abuse of the TMCH by brand owners. Nevertheless, you and others persist on wanting to conduct a fishing expedition under the guise of so called "transparency" to try and find some alleged widespread harm that simply does not exist. To many folks on the other side of the aisle, it appears that this is not about transparency but more about some effort to gut existing protections and to obtain the release of confidential information of brand owners as to what they did or did not register. Perhaps this may not be the intent, but we all know that once that information is out the gaming will really begin. Again, perhaps there are tweeks that could be made to improve the current system, but there is no real basis for undertaking the broad review that is being sought and certainly not for undoing the entire existing system." or more recently: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-July/002187.html "I think the basis problem has been and remains that the basis for all this hunting around and data requests is an unfounded claim that there is an abundance of “abusive and overreaching tmch registrations.” The evidence of such alleged widespread abuse has not been presented, because it doesn’t exist. What all this sound and fury about data etc. reminds me of is Donald Trump claiming with basically no evidence that there was widespread voter fraud to explain why he do not get the majority of the popular vote in the US and then setting up a special commission to investigate the matter in the hope of cobbling together some sort of proof. In the end it’s a waste of everybody’s time and money." (quoted in full, to not be accused of misquoting). Here's the thing, though. When you say something like "the evidence of such alleged widespread abuse has not been presented, because it doesn't exist", that doesn't make any distinction between EVIDENCE and PROOF. Perhaps Georges N. intended to write "proof" instead of "evidence". How do you prove "widespread abuse"? You start by presenting any "evidence of abuse". It's only once you have a LOT of evidence of abuse that you can then say that you have proof that there was "widespread abuse." Georges N. might disagree that the total amount of evidence has yet proven "widespread abuse", but when you start saying "evidence hasn't been presented", that denies the evidence itself of any abuse. We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP. i.e. is the term "widespread" (in percentage terms) somehow applied numerically differently when saying "the cybersquatting problem is widespread", than when saying "there are widespread abuses of the sunrise periods"? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi Susan, On Mon, Jul 17, 2017 at 11:54 AM, Susan Payne <susan.payne@valideus.com> wrote:
George K - could you explain what you mean by the following:
"We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP."
How do we know this?
Thank you for your question. We know that the overall rate of UDRPs relative to registrations is far below 0.1% (either for new gTLDs or legacy gTLDs like .com/net/org). So, even if we assume 0.1% as the benchmark (actual benchmark might be more like 0.01%), we've seen higher rates than that for gaming of the sunrises (i.e. 1% of the average 130 sunrise registrations would be 0.13 domains per TLD, and we've multiple ones like HOTEL, HOTELS, THE, HOSTING, and so on already identified, without systematic and complete access to the TMCH to reveal even more of them. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Of course, this proves that we actually "know" nothing of the sort. First, as far as I know, we have no idea whether the HOTEL or HOTELS TMCH registrations represent "gaming/abuse" (see my earlier email in this thread on "false positives"). These could be bona fide trademark registrations and bona fide TMCH registrations for all we know. (As also noted in my earlier email, HOSTING and THE do appear to represent gaming/abuse.) Second, trying to manufacture a percentage of sunrise domain registrations based on "gamed/abused" TMCH records in the "average Sunrise" is artificial and useless. We have no idea how many "gamed/abused" TMCH records have actually been registered in any given Sunrise (or the "average Sunrise"), and no information on which to base any assumptions. So that "0.13" is a junk number, and shows nothing about "higher rates for gaming of the sunrises." The only percentage that we could even hazard a guess at is the total number of "gamed/abused" records in the TMCH as a percentage of all TMCH registrations. Taking the two known likely gamed/abused marks (THE and HOSTING) and dividing by the total number of TMCH records (approximately 40,000) yields a percentage of 0.00005. Of course, that doesn't prove your point, but it's a more valid number than 0.13. Even you assume 200 gamed/abused records instead of 2, the percentage is still only 0.005 (one-five hundredth of one percent). Percentage of domains resulting in UDRPs is only a marginally more relevant statistic. What is the denominator here? All domain registrations ever? All new gTLD registrations in a year? All registrations within X days of sunrise in a new gTLD. And of course this tells us very little about the number of abusive/infringing domain registrations out there. I've seen numbers indicating that when brandowners take action regarding an infringing domain, that action is a UDRP only about 20% of the time. Furthermore, brandowners have grown weary of playing "whack-a-mole" and choose not to take action regarding a significant number of domains that may be infringing. Assuming for the sake of argument that this is also 20%, each UDRP represents roughly 25 infringing domains. So, taking your assumption of a 0.1% rate for bringing UDRPs, that means that roughly 2.5% of all domains could be considered infringing. Taking a step back, I don't see the utility of comparing the (unknowable) percentage of sunrise registrations based on gamed/abused TMCH records to the percentage of UDRPs over all (new gTLD) registrations. It tells us nothing. But, if it does, I think it tells us that infringing domains are roughly 500 times more likely than abused/gamed TMCH records. Greg On Mon, Jul 17, 2017 at 12:08 PM, George Kirikos <icann@leap.com> wrote:
Hi Susan,
On Mon, Jul 17, 2017 at 11:54 AM, Susan Payne <susan.payne@valideus.com> wrote:
George K - could you explain what you mean by the following:
"We already know that the percentage of gamed/abused sunrise registrations exceeds the proportion of domains that lead to a UDRP."
How do we know this?
Thank you for your question. We know that the overall rate of UDRPs relative to registrations is far below 0.1% (either for new gTLDs or legacy gTLDs like .com/net/org). So, even if we assume 0.1% as the benchmark (actual benchmark might be more like 0.01%), we've seen higher rates than that for gaming of the sunrises (i.e. 1% of the average 130 sunrise registrations would be 0.13 domains per TLD, and we've multiple ones like HOTEL, HOTELS, THE, HOSTING, and so on already identified, without systematic and complete access to the TMCH to reveal even more of them.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hello, On Mon, Jul 17, 2017 at 2:00 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Of course, this proves that we actually "know" nothing of the sort.
First, as far as I know, we have no idea whether the HOTEL or HOTELS TMCH registrations represent "gaming/abuse" (see my earlier email in this thread on "false positives"). These could be bona fide trademark registrations and bona fide TMCH registrations for all we know. (As also noted in my earlier email, HOSTING and THE do appear to represent gaming/abuse.)
This re-raises the issue of who is in denial here, or whether this is "Groundhog Day" or "50 First Dates". "HOTEL" was analyzed back in March 2017, in the post at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-March/001119.html (section 6) and the same analysis applied to "HOTELS" (i.e. the screenshots showed HOTELS.TLD strings also gamed and for sale), and brought up other times too.
Second, trying to manufacture a percentage of sunrise domain registrations based on "gamed/abused" TMCH records in the "average Sunrise" is artificial and useless. We have no idea how many "gamed/abused" TMCH records have actually been registered in any given Sunrise (or the "average Sunrise"), and no information on which to base any assumptions. So that "0.13" is a junk number, and shows nothing about "higher rates for gaming of the sunrises." The only percentage that we could even hazard a guess at is the total number of "gamed/abused" records in the TMCH as a percentage of all TMCH registrations. Taking the two known likely gamed/abused marks (THE and HOSTING) and dividing by the total number of TMCH records (approximately 40,000) yields a percentage of 0.00005. Of course, that doesn't prove your point, but it's a more valid number than 0.13. Even you assume 200 gamed/abused records instead of 2, the percentage is still only 0.005 (one-five hundredth of one percent).
You're trying to choose a larger base/denominator (percentage in the TMCH, vs. percentage from the sunrise), when we've never been given the opportunity to examine the entire TMCH database (which would change the numerator). The minimal data we've had access to is from the actual sunrise registrations, so that's why it belongs in the denominator, as opposed to the total TMCH registrations. Furthermore, your math is off by a factor of 100. When taking a percentage, one divides the two numbers and then multiplies by 100. e.g. 2 (your number, not mine) divided by 40,000 = 0.00005, = 0.005% Of course, the correct numerator is not just "2" (it should be higher), and the correct denominator is not 40,000 (it's more like 130).
infringing. Assuming for the sake of argument that this is also 20%, each UDRP represents roughly 25 infringing domains. So, taking your assumption of a 0.1% rate for bringing UDRPs, that means that roughly 2.5% of all domains could be considered infringing.
I wasn't assuming 0.1% is the exact rate --- that was an upper bound, for simplicity. UDRP rate is at best 10,000 domains per year in a UDRP divided by 150 million domains, which is 0.007% (i.e. 0.00007 x 100%). I used highly conservative upper/lower bands previously, just to get a rough picture. Also, one needs to understand that not all crime reaches a level beyond "de minimis" damages (i.e. annoyance vs. damage). In retail, there's the concept of "shrinkage", due to employee theft, shoplifting, vendor fraud, etc. A certain percentage is inevitable, and won't be prosecuted because it's so minor. The focus is on the more serious cases, e.g. someone steals 100 iPhones, instead of the granny eating a grape at a grocery store and not paying for it. Many of the RPMs appear to be a disproportionate response to the "granny eating a grape", rather than the the theft of 100 iPhones. When the theft of 100 iPhones does take place, there are already laws on the books to handle that situation (e.g. ACPA, or other litigation). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George, Thank you for reminding me about your March email where you mentioned the owner of the HOTEL TMCH record. I'm sorry if I haven't memorized The Uncollected Emails of George Kirikos as well as you have. My thank you would be a bit more sincere if you had actually framed it as a reminder, rather than comparing me to an amnesiac. In any event I'll match my junk math with your junk math, particularly with regard to choice of denominators (and motivations for making such choices). However, I will grant you that it is likely that abusive/gamed TMCH records will be used more often in Sunrise than other TMCH records on average -- *because that is the reason they were recorded in the TMCH in the first place*! But you don't need to convince me that abuse/gaming of the TMCH is an issue. I agree that it is and it seems to be coming from speculators. As such, bona fide brandowners have as much of an interest in mitigating this problem as any other stakeholder group. I note that according to your March email, the owner of the HOTEL TMCH record is Hotel Top Level Domain GMBH, the registry for .HOTEL. I also note that number 10 on the list is LUXURY, owned by ILUX Holdings, which shares an address with the applicant fo the .LUXURY TLD (at a nice, upscale home in Hidden Hills, CA). Perhaps a rule prohibiting registries from participating in Sunrise with a TMCH record that matches their TLD would help quite a bit..... (Unless somebody has an argument that this is a Good Thing). It also appears that we may not need to go too far afield to resolve many of the abuse/gaming problems, since of the four abusers identified, two are registries and one is a registrar. However, if the goal of comparing these two percentages is to somehow convey or convince someone that TMCH gaming is a bigger or more serious problem than domain-based IP infringement, then it is completely unconvincing. Finally, if you think that domain-based IP infringement is comparable to "granny eating a grape" you will get extremely strong disagreement from me, along with every other brandowner, large and small, and their representatives that has ever sought to enforce their rights against an infringing domain name. That is a premise that will get us nowhere, slowly. As is the premise that civil litigation is a preferable mechanism to resolving domain name infringement -- I could write a book on why that's not the case but I'm sure somebody else (Paul McGrady?) already has done so.... In any case, we should stop this "measuring contest" and move on to solving problems..... Greg On Mon, Jul 17, 2017 at 2:41 PM, George Kirikos <icann@leap.com> wrote:
Hello,
On Mon, Jul 17, 2017 at 2:00 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Of course, this proves that we actually "know" nothing of the sort.
First, as far as I know, we have no idea whether the HOTEL or HOTELS TMCH registrations represent "gaming/abuse" (see my earlier email in this thread on "false positives"). These could be bona fide trademark registrations and bona fide TMCH registrations for all we know. (As also noted in my earlier email, HOSTING and THE do appear to represent gaming/abuse.)
This re-raises the issue of who is in denial here, or whether this is "Groundhog Day" or "50 First Dates". "HOTEL" was analyzed back in March 2017, in the post at:
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-March/001119.html
(section 6) and the same analysis applied to "HOTELS" (i.e. the screenshots showed HOTELS.TLD strings also gamed and for sale), and brought up other times too.
Second, trying to manufacture a percentage of sunrise domain registrations based on "gamed/abused" TMCH records in the "average Sunrise" is artificial and useless. We have no idea how many "gamed/abused" TMCH records have actually been registered in any given Sunrise (or the "average Sunrise"), and no information on which to base any assumptions. So that "0.13" is a junk number, and shows nothing about "higher rates for gaming of the sunrises." The only percentage that we could even hazard a guess at is the total number of "gamed/abused" records in the TMCH as a percentage of all TMCH registrations. Taking the two known likely gamed/abused marks (THE and HOSTING) and dividing by the total number of TMCH records (approximately 40,000) yields a percentage of 0.00005. Of course, that doesn't prove your point, but it's a more valid number than 0.13. Even you assume 200 gamed/abused records instead of 2, the percentage is still only 0.005 (one-five hundredth of one percent).
You're trying to choose a larger base/denominator (percentage in the TMCH, vs. percentage from the sunrise), when we've never been given the opportunity to examine the entire TMCH database (which would change the numerator). The minimal data we've had access to is from the actual sunrise registrations, so that's why it belongs in the denominator, as opposed to the total TMCH registrations.
Furthermore, your math is off by a factor of 100. When taking a percentage, one divides the two numbers and then multiplies by 100. e.g. 2 (your number, not mine) divided by 40,000 = 0.00005, = 0.005% Of course, the correct numerator is not just "2" (it should be higher), and the correct denominator is not 40,000 (it's more like 130).
infringing. Assuming for the sake of argument that this is also 20%, each UDRP represents roughly 25 infringing domains. So, taking your assumption of a 0.1% rate for bringing UDRPs, that means that roughly 2.5% of all domains could be considered infringing.
I wasn't assuming 0.1% is the exact rate --- that was an upper bound, for simplicity. UDRP rate is at best 10,000 domains per year in a UDRP divided by 150 million domains, which is 0.007% (i.e. 0.00007 x 100%). I used highly conservative upper/lower bands previously, just to get a rough picture.
Also, one needs to understand that not all crime reaches a level beyond "de minimis" damages (i.e. annoyance vs. damage). In retail, there's the concept of "shrinkage", due to employee theft, shoplifting, vendor fraud, etc. A certain percentage is inevitable, and won't be prosecuted because it's so minor. The focus is on the more serious cases, e.g. someone steals 100 iPhones, instead of the granny eating a grape at a grocery store and not paying for it.
Many of the RPMs appear to be a disproportionate response to the "granny eating a grape", rather than the the theft of 100 iPhones. When the theft of 100 iPhones does take place, there are already laws on the books to handle that situation (e.g. ACPA, or other litigation).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Dear WG Members: Let’s keep this civil. I think each party can make their observations without impugning the character of the other person. And, yes, I know I have been guilty of the same behavior in the past, but I am endeavoring to be a better person here so that we can have honest, robust discussions of the issues without all the hyperbole. I will try to do better and ask that you all will too. Thanks in advance. J. Scott [tps://inside.corp.adobe.com/content/dam/brandcenter/images/image002.gif] J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Trademarks 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com From: <gnso-rpm-wg-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Date: Monday, July 17, 2017 at 12:42 PM To: George Kirikos <icann@leap.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] FW: Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group) George, Thank you for reminding me about your March email where you mentioned the owner of the HOTEL TMCH record. I'm sorry if I haven't memorized The Uncollected Emails of George Kirikos as well as you have. My thank you would be a bit more sincere if you had actually framed it as a reminder, rather than comparing me to an amnesiac. In any event I'll match my junk math with your junk math, particularly with regard to choice of denominators (and motivations for making such choices). However, I will grant you that it is likely that abusive/gamed TMCH records will be used more often in Sunrise than other TMCH records on average -- because that is the reason they were recorded in the TMCH in the first place! But you don't need to convince me that abuse/gaming of the TMCH is an issue. I agree that it is and it seems to be coming from speculators. As such, bona fide brandowners have as much of an interest in mitigating this problem as any other stakeholder group. I note that according to your March email, the owner of the HOTEL TMCH record is Hotel Top Level Domain GMBH, the registry for .HOTEL. I also note that number 10 on the list is LUXURY, owned by ILUX Holdings, which shares an address with the applicant fo the .LUXURY TLD (at a nice, upscale home in Hidden Hills, CA). Perhaps a rule prohibiting registries from participating in Sunrise with a TMCH record that matches their TLD would help quite a bit..... (Unless somebody has an argument that this is a Good Thing). It also appears that we may not need to go too far afield to resolve many of the abuse/gaming problems, since of the four abusers identified, two are registries and one is a registrar. However, if the goal of comparing these two percentages is to somehow convey or convince someone that TMCH gaming is a bigger or more serious problem than domain-based IP infringement, then it is completely unconvincing. Finally, if you think that domain-based IP infringement is comparable to "granny eating a grape" you will get extremely strong disagreement from me, along with every other brandowner, large and small, and their representatives that has ever sought to enforce their rights against an infringing domain name. That is a premise that will get us nowhere, slowly. As is the premise that civil litigation is a preferable mechanism to resolving domain name infringement -- I could write a book on why that's not the case but I'm sure somebody else (Paul McGrady?) already has done so.... In any case, we should stop this "measuring contest" and move on to solving problems..... Greg On Mon, Jul 17, 2017 at 2:41 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote: Hello, On Mon, Jul 17, 2017 at 2:00 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
Of course, this proves that we actually "know" nothing of the sort.
First, as far as I know, we have no idea whether the HOTEL or HOTELS TMCH registrations represent "gaming/abuse" (see my earlier email in this thread on "false positives"). These could be bona fide trademark registrations and bona fide TMCH registrations for all we know. (As also noted in my earlier email, HOSTING and THE do appear to represent gaming/abuse.)
This re-raises the issue of who is in denial here, or whether this is "Groundhog Day" or "50 First Dates". "HOTEL" was analyzed back in March 2017, in the post at: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-March/001119.html<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmm.icann.org%2Fpipermail%2Fgnso-rpm-wg%2F2017-March%2F001119.html&data=02%7C01%7C%7Cb7a26d31dae34235757708d4cd4c143a%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636359174022771265&sdata=1mmMqXcMp3YJLGCzz7S1toSKMpm%2BcOCPFXqMeQPC5Vc%3D&reserved=0> (section 6) and the same analysis applied to "HOTELS" (i.e. the screenshots showed HOTELS.TLD strings also gamed and for sale), and brought up other times too.
Second, trying to manufacture a percentage of sunrise domain registrations based on "gamed/abused" TMCH records in the "average Sunrise" is artificial and useless. We have no idea how many "gamed/abused" TMCH records have actually been registered in any given Sunrise (or the "average Sunrise"), and no information on which to base any assumptions. So that "0.13" is a junk number, and shows nothing about "higher rates for gaming of the sunrises." The only percentage that we could even hazard a guess at is the total number of "gamed/abused" records in the TMCH as a percentage of all TMCH registrations. Taking the two known likely gamed/abused marks (THE and HOSTING) and dividing by the total number of TMCH records (approximately 40,000) yields a percentage of 0.00005. Of course, that doesn't prove your point, but it's a more valid number than 0.13. Even you assume 200 gamed/abused records instead of 2, the percentage is still only 0.005 (one-five hundredth of one percent).
You're trying to choose a larger base/denominator (percentage in the TMCH, vs. percentage from the sunrise), when we've never been given the opportunity to examine the entire TMCH database (which would change the numerator). The minimal data we've had access to is from the actual sunrise registrations, so that's why it belongs in the denominator, as opposed to the total TMCH registrations. Furthermore, your math is off by a factor of 100. When taking a percentage, one divides the two numbers and then multiplies by 100. e.g. 2 (your number, not mine) divided by 40,000 = 0.00005, = 0.005% Of course, the correct numerator is not just "2" (it should be higher), and the correct denominator is not 40,000 (it's more like 130).
infringing. Assuming for the sake of argument that this is also 20%, each UDRP represents roughly 25 infringing domains. So, taking your assumption of a 0.1% rate for bringing UDRPs, that means that roughly 2.5% of all domains could be considered infringing.
I wasn't assuming 0.1% is the exact rate --- that was an upper bound, for simplicity. UDRP rate is at best 10,000 domains per year in a UDRP divided by 150 million domains, which is 0.007% (i.e. 0.00007 x 100%). I used highly conservative upper/lower bands previously, just to get a rough picture. Also, one needs to understand that not all crime reaches a level beyond "de minimis" damages (i.e. annoyance vs. damage). In retail, there's the concept of "shrinkage", due to employee theft, shoplifting, vendor fraud, etc. A certain percentage is inevitable, and won't be prosecuted because it's so minor. The focus is on the more serious cases, e.g. someone steals 100 iPhones, instead of the granny eating a grape at a grocery store and not paying for it. Many of the RPMs appear to be a disproportionate response to the "granny eating a grape", rather than the the theft of 100 iPhones. When the theft of 100 iPhones does take place, there are already laws on the books to handle that situation (e.g. ACPA, or other litigation). Sincerely, George Kirikos 416-588-0269<tel:416-588-0269> http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7Cb7a26d31dae34235757708d4cd4c143a%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636359174022771265&sdata=KvpzpyUnzhV4Aw4wafhbFrYBGRIX3t8OlGSecHiuiho%3D&reserved=0> _______________________________________________ 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7Cb7a26d31dae34235757708d4cd4c143a%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636359174022771265&sdata=7WR%2BffJz%2FaxiKTetzkyQQ3FPT5oiHbj74gGYjZYSTWQ%3D&reserved=0>
Hi folks, On Thu, Jul 13, 2017 at 5:28 AM, Susan Payne <susan.payne@valideus.com> wrote:
Correct, the data for two registrars was excluded because of concerns about mining, but Analysis Group clearly were not confident that fully addressed the concern:
Yes, but remember those 2 registrars already accounted for 62.2% of the data. So, we're left now with only 37.8% of the entire data set at this point. How much more data should be "thrown out"? Presumably that 62.2% of the data had an "abandonment rate" of close to 100%, as it would have moved the total abandonment rate from the 93.7% figure (of the subset) to 99% (of the entire universe of observations).
We are wasting our time with this. What would not be a waste of time would be to identify the data that we wish we had and make recommendations such that any future review would not be similarly hampered.
We can do things fast, or we can do things right. I think it's our duty to do things right, and use the data we have (and it's clear that The Analysis Group did have lots of data; e.g. they would have access to *time-stamps*, because they were able to detect "bulk downloads" that happened to have the same time-stamp; that means one could, as I suggested, filter out the earliest part of the claims period, where any additional undetected "mining" would have been greatest). And obviously the registrar-by-registrar data exists, too (which can be anonymized), since they excluded 2 of them. Some folks seem to be working on an assumption that if we don't look for data or don't use the data we know exists (e.g. the top 500 strings requested via the TMC, instead of just the top 10; a longstanding request for that one), that supports the status quo re: RPMs, or it might also expedite a Round 2 (if future rounds of new gTLDs are even justifiable). I disagree with that assumption. The new gTLDs were an "experiment" that seems to have failed, and the burden should be upon those that pushed for new gTLDs and pushed for these RPMs in the first place to overcome the objections of those who disagreed with them back when they were proposed. To overcome those objections, data is required. The data that we've already seen analyzed by others (the 93.7% abandonment rate, gaming of the sunrise, top 10 most requested TMCH strings turning out to commonly used dictionary words like "ONE" as opposed to strong fanciful marks like EXXON or VERIZON, etc.) already point against the continuation of these RPMs. I think the fear by some is that what's already a strong case against new gTLDs and the RPMs will be made even stronger once we've analyzed more of that data (which has been withheld from our group and/or the public). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
participants (13)
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Beckham, Brian -
George Kirikos -
Greg Shatan -
J. Scott Evans -
Jeff Neuman -
Jeremy Malcolm -
Jon Nevett -
Kurt Pritz -
Nahitchevansky, Georges -
Paul Keating -
Susan Payne -
Volker Greimann -
Winterfeldt, Brian J.