Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
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+1 -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Wednesday, April 12, 2017 8:09 AM To: Paul Keating Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff. org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34 438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata=FLU88IUnUq0DT ixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ====================================================================== Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
Just to be on the record, I'm all for accurate and public WHOIS, and have said so for many many years. Indeed, I suggested that WHOIS contain a record of one's attorney, so that registrants could receive any legal notices via that mechanism, in case they were on holidays, etc. (just like corporate records contain an agent authorized to accept service of legal documents). Accurate WHOIS ensure accountability, and allows for parties to be reachable to decide disputes in the courts. There's no "confidential" information in the TMCH database. All the underlying trademarks are public. Furthermore, to the extent that TM holders submit only a subset of their marks to the TMCH, allowing others to make inferences about their potential strategies, that's their choice. TM holders (unregistered + registered) who submit only a subset of their marks to the USPTO (in order to gain the added benefits of registration) also allow inferences about their strategies. TM holders who sue in courts over some marks also allow inferences about their strategies. USPTO and court records are all public. I can see which subset of US marks owned by a brand are registered in Canada, and draw inferences of "importance". Not every inference is a "trade secret". If you don't want to permit those inferences, either register ALL your marks, or register none of them. Push for lower fees (as I have), and the first option becomes more affordable. You can't create a problem (submitting a subset), and then expect the community to be sympathetic to the problem you created for yourself. We know from the Deloitte stats that the median number of TMCH recordals per organization was 1. So, these "inferences" are just about the mega-corporations, with thousands of marks. Provide bulk discounts, etc. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, Apr 12, 2017 at 8:09 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
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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.
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+1 Georges Colin Thomas Jefferson O’Brien 321 North Clark Street, Suite 720 Chicago, Illinois 60654 312-634-9503 http://www.partridge.partners/ -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Wednesday, April 12, 2017 7:09 AM To: Paul Keating Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff. org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34 438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata=FLU88IUnUq0DT ixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
Public key: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. eff.org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=02%7C01%7C%7 C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34438794aed2c178decee1% 7C0%7C0%7C636275414221373268&sdata=GzYW9x04IhxeW3HTyWRedWTpbiQQOrfZff lAKXdh04M%3D&reserved=0 PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
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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.
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Adding issues outside the remit of this working group isn't helpful to the discussions of this working group. Joining the WHOIS working group would be the best wayforward. The people who want to keep the WHOIS open rather than make it more closed are desperate for help. http://www.circleid.com/posts/20170324_loudmouths_wanted_ for_icann_whois_replacement_work/ https://community.icann.org/display/gTLDRDS/Next- Generation+gTLD+Registration+Directory+Services+to+Replace+Whois On Wed, Apr 12, 2017 at 3:17 PM, Colin O'Brien < colin@partridgepartnerspc.com> wrote:
+1 Georges
Colin Thomas Jefferson O’Brien
321 North Clark Street, Suite 720 Chicago, Illinois 60654 312-634-9503 http://www.partridge.partners/
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Wednesday, April 12, 2017 7:09 AM To: Paul Keating Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff. org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34 438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata=FLU88IUnUq0DT ixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
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I agree with Georges that there is a linkage and that understanding the seemingly inconsistent approaches is helpful to this group. Ultimately this is a set of policies regardless of which WG is working on which piece. On the other hand, I agree with Paul T. that this is not the place to debate the finer points of Whois policy. But where would one discuss the cross-over issues between policies? This is certainly a right place for that. Greg On Wed, Apr 12, 2017 at 10:35 AM Paul Tattersfield <gpmgroup@gmail.com> wrote:
Adding issues outside the remit of this working group isn't helpful to the discussions of this working group.
Joining the WHOIS working group would be the best wayforward. The people who want to keep the WHOIS open rather than make it more closed are desperate for help.
http://www.circleid.com/posts/20170324_loudmouths_wanted_for_icann_whois_rep...
https://community.icann.org/display/gTLDRDS/Next-Generation+gTLD+Registratio...
On Wed, Apr 12, 2017 at 3:17 PM, Colin O'Brien < colin@partridgepartnerspc.com> wrote:
+1 Georges
Colin Thomas Jefferson O’Brien
321 North Clark Street, Suite 720 Chicago, Illinois 60654 312-634-9503 http://www.partridge.partners/
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Wednesday, April 12, 2017 7:09 AM To: Paul Keating Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | www.kilpatricktownsend.com
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff. org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34 438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata=FLU88IUnUq0DT ixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
Public key: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww. eff.org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=02%7C01%7C%7 C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34438794aed2c178decee1% 7C0%7C0%7C636275414221373268&sdata=GzYW9x04IhxeW3HTyWRedWTpbiQQOrfZff lAKXdh04M%3D&reserved=0 PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
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+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
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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.
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+1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
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This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel <tel:517-507-1446> 517-507-1446 | <mailto:bscarpelli@actonline.org> bscarpelli@actonline.org ACT | The App Association From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges < <mailto:ghn@kilpatricktownsend.com> ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 <mailto:ghn@kilpatricktownsend.com> ghn@kilpatricktownsend.com | <https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...> https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: <mailto:gnso-rpm-wg-bounces@icann.org> 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: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg < <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. <mailto:jsevans@adobe.com> jsevans@adobe.com <http://www.adobe.com> www.adobe.com
On 4/11/17, 2:03 PM, " <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm> gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" < <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org> gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat...> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... <mailto:jmalcolm@eff.org> jmalcolm@eff.org
Tel: 415.436.9333 ext 161
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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 <mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336!
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken. Would that resolve the concern about confidentiality? On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
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Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME? -----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken. Would that resolve the concern about confidentiality? On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
Public key: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org... PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
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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.
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Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there? On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org
Tel: 415.436.9333 ext 161
:: Defending Your Rights in the Digital World ::
Public key: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org... PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
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!DSPAM:58ef90bc17161720142306!
Well, if you're a one brand SME you may be simply hoping that no-one registers your name in a DN anywhere, as you just can't afford to do it yourself right now. You want to stay under the radar until you're ready to go, and have decided where to go. Being in the TMCH gets you on those starting blocks, and acts as a watch service. The relative effect of any form of TM infringement and enforcement is of course so much tougher for an SME to absorb. But way before that, factor in a Registry who decides to charge massively inflated premium prices based on brands registered in the TMCH. They may not have picked up yours, or even knew you were a potential registrant; now they do and now your name might just cost an awful lot more in Sunrise. -----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 17:16 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there? On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend .com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dml R-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
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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.
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This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
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!DSPAM:58ef967d17164438144690!
We need to agree on definitions of "abuse" or "gaming" before we "investigate" anything. If "abuse" refers to an entity that is getting TM registrations solely to gain sunrise access, and not because they have an ongoing business providing goods or services using the brand, then I'm not sure what a list of marks alone would contribute. On the other hand, the idea that a list of marks alone would be helpful in finding "abuse" seems to point to a position that "abuse" relates to the word(s) in the mark, even though the mark is used in an ongoing business in connection with providing goods or services and the mark has a valid trademark registration. There may be other proposed definitions besides the above. Let's focus on getting this out on the table so we can decide what constitutes "abuse"/"gaming". Until we get clarity on this point, any discussion of investigation of "abuse" is premature. Greg On Thu, Apr 13, 2017 at 11:17 AM Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there?
On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto: gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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 |
https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:
gnso-rpm-wg-bounces@icann.org]
On Behalf Of Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org
wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat...
jmalcolm@eff.org
Tel: 415.436.9333 ext 161
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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.
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-- *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com
I think we can safely assume in ICANN-land that there is gaming going on. I am also sure that in some cases there may be overreaching going on. That said, given the number of domains registered in new gTLDs and the relatively low number of Sunrise registrations being registered. I am not sure this as big a problem as everyone is making it out to be. There are ways to mitigate this gaming and abuse without having to reveal the confidential information in the database. I have several ideas. I will put together some thoughts. J. Scott [ttps://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, Associate General Counsel 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: Thursday, April 13, 2017 at 8:35 AM To: Marie Pattullo <marie.pattullo@aim.be>, Michael Karanicolas <mkaranicolas@gmail.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today We need to agree on definitions of "abuse" or "gaming" before we "investigate" anything. If "abuse" refers to an entity that is getting TM registrations solely to gain sunrise access, and not because they have an ongoing business providing goods or services using the brand, then I'm not sure what a list of marks alone would contribute. On the other hand, the idea that a list of marks alone would be helpful in finding "abuse" seems to point to a position that "abuse" relates to the word(s) in the mark, even though the mark is used in an ongoing business in connection with providing goods or services and the mark has a valid trademark registration. There may be other proposed definitions besides the above. Let's focus on getting this out on the table so we can decide what constitutes "abuse"/"gaming". Until we get clarity on this point, any discussion of investigation of "abuse" is premature. Greg On Thu, Apr 13, 2017 at 11:17 AM Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there? On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association
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 Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C7f0d096cdf824770bd6b08d48282dd12%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636276945959842606&sdata=KQqypwUZScDzyOXWePOjQWLwG9dUTfh5YDvVew2fKkI%3D&reserved=0>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of jmalcolm@eff.org<mailto:jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
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Jscott, As I have noted, it would seem all that is needed is the following: The mark The basis for inclusion (obviously not the reg. number). I do not think we would need other information. And, even if we did I cannot find any prohibition against disclosure to this WG based upon the summary files Mary sent today. Regards, Paul From: <gnso-rpm-wg-bounces@icann.org> on behalf of "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Reply-To: "J. Scott Evans" <jsevans@adobe.com> Date: Thursday, April 13, 2017 at 5:52 PM To: Greg Shatan <gregshatanipc@gmail.com>, Marie Pattullo <marie.pattullo@aim.be>, Michael Karanicolas <mkaranicolas@gmail.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
I think we can safely assume in ICANN-land that there is gaming going on. I am also sure that in some cases there may be overreaching going on. That said, given the number of domains registered in new gTLDs and the relatively low number of Sunrise registrations being registered. I am not sure this as big a problem as everyone is making it out to be. There are ways to mitigate this gaming and abuse without having to reveal the confidential information in the database. I have several ideas. I will put together some thoughts.
J. Scott
J. Scott Evans408.536.5336 (tel)345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel408.709.6162 (cell)San Jose, CA, 95110, USA Adobe. Make It an Experience.jsevans@adobe.comwww.adobe.com
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Date: Thursday, April 13, 2017 at 8:35 AM To: Marie Pattullo <marie.pattullo@aim.be>, Michael Karanicolas <mkaranicolas@gmail.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
We need to agree on definitions of "abuse" or "gaming" before we "investigate" anything.
If "abuse" refers to an entity that is getting TM registrations solely to gain sunrise access, and not because they have an ongoing business providing goods or services using the brand, then I'm not sure what a list of marks alone would contribute.
On the other hand, the idea that a list of marks alone would be helpful in finding "abuse" seems to point to a position that "abuse" relates to the word(s) in the mark, even though the mark is used in an ongoing business in connection with providing goods or services and the mark has a valid trademark registration.
There may be other proposed definitions besides the above. Let's focus on getting this out on the table so we can decide what constitutes "abuse"/"gaming".
Until we get clarity on this point, any discussion of investigation of "abuse" is premature.
Greg
On Thu, Apr 13, 2017 at 11:17 AM Michael Karanicolas <mkaranicolas@gmail.com> wrote:
Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there?
On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won¹t show you the ³abuse² you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn¹t show you any form of abusive, or benign, behaviour it¹s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves ³abuse² in the Claims Notices, but those Notices don¹t allow the TM owner to be abusive either they¹re just a heads up.
So with respect, I simply don¹t understand your repeated claims that you need access to this data to find ³abuse². In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn¹t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you¹ll forgive me for believing the contrary.
Kind regards
Marie
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
>> On 12 Apr 2017, at 00:18, Nahitchevansky, Georges >> <ghn@kilpatricktownsend.com> wrote: >> >> Can I quote you in this on having an open and robust whois so we can have >> across the board actual and real information on the parties registering >> domain names and know who the bad actors are >> >> 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 | >> https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c =E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnK xz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1 <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprot ect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3 DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7u aJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C %7C7f0d096cdf824770bd6b08d48282dd12%7Cfa7b1b5a7b34438794aed2c178decee1%7C0 %7C0%7C636276945959842606&sdata=KQqypwUZScDzyOXWePOjQWLwG9dUTfh5YDvVew2fKk I%3D&reserved=0> >> >> >> >> -----Original Message----- >> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] >> On Behalf Of Paul Keating >> Sent: Tuesday, April 11, 2017 5:58 PM >> To: J. Scott Evans >> Cc: gnso-rpm-wg@icann.org >> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working >> Group call held earlier today >> >> It says at most which domains it wants pre-emptiness and notice rights >> over. >> >> Hardly a confidential business secret. The information is a public record. >> And, After all the Information is instantly public the minute one >> pre-emptive sunrise registration is undertaken. The notice right is >> completely a non secret. >> >> And hardly sufficient to use to hide bad actors. >> >> >> >> Sent from my iPad >> >>>> On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg >>>> <gnso-rpm-wg@icann.org> wrote: >>>> >>>> There is a big difference from a database that contains all a company¹s >>>> registered marks and one that contains a culling for only those it deems >>>> most valuable for protection in the DNS. The former is clearly open for the >>>> public, the later is not. >>>> >>>> J. Scott >>>> >>>> >>>> J. Scott Evans >>>> 408.536.5336 (tel) >>>> 345 Park Avenue, Mail Stop W11-544 >>>> Director, Associate General Counsel >>>> 408.709.6162 (cell) >>>> San Jose, CA, 95110, USA >>>> Adobe. Make It an Experience. >>>> jsevans@adobe.com >>>> www.adobe.com <http://www.adobe.com> >>>> >>>> >>>> >>>> >>>> On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy >>>> Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> >>>> wrote: >>>> >>>> On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote: > >>>>> George: > >>>>> > >>>>> We have all followed this string. We understand that you and a few > >>>>> others believe there need to be wholesale changes to the Sunrise > mechanism > >>>>> and the TMCH database (or at least the confidentiality of that > data). > >>>>> > >>>>> 1. Do you have a suggestion for how to improve the Sunrise > mechanism? > >>>>> 2. I see very little support for violating the confidentiality > >>>>> provisions of the TMCH contract. >>>> >>>> FWIW I am also all for bringing the transparency of the TMCH database >>>> into line with those of national trademark registries so that its >>>> secrecy does not facilitate the kinds of abuses that George has >>>> uncovered. I have been an observer until now but I've just upgraded to >>>> member and plan to join the call tomorrow. >>>> >>>> -- >>>> Jeremy Malcolm >>>> Senior Global Policy Analyst >>>> Electronic Frontier Foundation >>>> >>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org& data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34438794ae d2c178decee1%7C0%7C0%7C636275414221363260&sdata=FLU88IUnUq0DTixWIhDAELHUt jhYZgxqHGr8ihACkQ8%3D&reserved=0 >>>> jmalcolm@eff.org >>>> >>>> Tel: 415.436.9333 ext 161 >>>> >>>> :: Defending Your Rights in the Digital World :: >>>> >>>> Public key: >>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff. org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=02%7C01%7C%7C2528000 b02f744c8d69a08d4811e3b81%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C63 6275414221373268&sdata=GzYW9x04IhxeW3HTyWRedWTpbiQQOrfZfflAKXdh04M%3D&res erved=0 >>>> 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 <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.ican n.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C7f0d096cdf8247 70bd6b08d48282dd12%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636276945
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Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming. J. Scott [ttps://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, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com From: Paul Keating <Paul@law.es> Date: Thursday, April 13, 2017 at 10:57 AM To: J Scott Evans <jsevans@adobe.com>, Greg Shatan <gregshatanipc@gmail.com>, Marie Pattullo <marie.pattullo@aim.be>, Michael Karanicolas <mkaranicolas@gmail.com> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Jscott, As I have noted, it would seem all that is needed is the following: The mark The basis for inclusion (obviously not the reg. number). I do not think we would need other information. And, even if we did I cannot find any prohibition against disclosure to this WG based upon the summary files Mary sent today. Regards, Paul From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of "J. Scott Evans via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Reply-To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Date: Thursday, April 13, 2017 at 5:52 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today I think we can safely assume in ICANN-land that there is gaming going on. I am also sure that in some cases there may be overreaching going on. That said, given the number of domains registered in new gTLDs and the relatively low number of Sunrise registrations being registered. I am not sure this as big a problem as everyone is making it out to be. There are ways to mitigate this gaming and abuse without having to reveal the confidential information in the database. I have several ideas. I will put together some thoughts. 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, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Date: Thursday, April 13, 2017 at 8:35 AM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today We need to agree on definitions of "abuse" or "gaming" before we "investigate" anything. If "abuse" refers to an entity that is getting TM registrations solely to gain sunrise access, and not because they have an ongoing business providing goods or services using the brand, then I'm not sure what a list of marks alone would contribute. On the other hand, the idea that a list of marks alone would be helpful in finding "abuse" seems to point to a position that "abuse" relates to the word(s) in the mark, even though the mark is used in an ongoing business in connection with providing goods or services and the mark has a valid trademark registration. There may be other proposed definitions besides the above. Let's focus on getting this out on the table so we can decide what constitutes "abuse"/"gaming". Until we get clarity on this point, any discussion of investigation of "abuse" is premature. Greg On Thu, Apr 13, 2017 at 11:17 AM Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote: Ok. I appreciate your response. I think it's very helpful to understand the concerns as clearly as possible, so I guess my question would be how sensitive that information is if we're talking about one brand SMEs. I can understand if we're talking about a major company with lots of different brands, looking at their prioritization would give an insight into their future strategies, but if there's only one brand, there's not much of a marketing insight you could get from seeing what they've taken, is there? On Thu, Apr 13, 2017 at 11:55 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote:
Thanks Michael - but that's not really a flyer for TMs that are easily recognisable (and thus attributable to an owner). Worse, what about the one-brand SME?
-----Original Message----- From: Michael Karanicolas [mailto:mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>] Sent: jeudi 13 avril 2017 16:52 To: Marie Pattullo Cc: Paul Keating; Brian Scarpelli; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Hi - I understand the objection. So what if the identity of the registering party was scrubbed from the data before it was delivered? That way, readers wouldn't be able to tie the registrations to any broader brand strategy, because they wouldn't be able to develop a comprehensive list of brands registered by any particular party. All you would see is a list of what's been taken.
Would that resolve the concern about confidentiality?
On Thu, Apr 13, 2017 at 11:41 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli
Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association
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 Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C7f0d096cdf824770bd6b08d48282dd12%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636276945959842606&sdata=KQqypwUZScDzyOXWePOjQWLwG9dUTfh5YDvVew2fKkI%3D&reserved=0>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of jmalcolm@eff.org<mailto:jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
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+1 Marie. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos. On Apr 13, 2017, at 7:42 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote: Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336! _______________________________________________ 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
+1 Sent from my iPhone
On Apr 13, 2017, at 8:11 AM, Kiran Malancharuvil via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
+1 Marie.
Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)
Sent from my mobile, please excuse any typos.
On Apr 13, 2017, at 7:42 AM, Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>> wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely, Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336! _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or... _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
Paul, As Marie notes, looking at the number of sunrise registrations (an average of 130) alone seems to mitigate against further investigation for evidence of abuse. It is furthermore difficult to see how merely seeing a raw list of marks in the TMCH would allow anyone to assess the extent of any abuse. This would instead require a case-by-case substantive re-examination of the underlying trademark record. As has been pointed out on numerous occasions, to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures? There are some parallels here to today’s system of unscreened domain name registrations whereby trademark owners must attend to abuse of their marks after-the-fact. Perhaps as part of this working group’s assessment of the effectiveness of curative RPMs, such registration method and the speculative market it supports should be re-examined. Regards, Brian From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 4:42 PM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute <http://clearinghouse.com/dispute>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures?
I think any challenge mechanism that relies on good samaritans for enforcement is insufficient. If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering. If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money. So it really takes a determined individual or company, with time and money, to pursue these challenges. If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies. - Bret
First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost. J. Scott [ttps://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, Associate General Counsel 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 Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearinghous...>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures? I think any challenge mechanism that relies on good samaritans for enforcement is insufficient. If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering. If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money. So it really takes a determined individual or company, with time and money, to pursue these challenges. If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies. - Bret
You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good. Bret
On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com> wrote:
First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost.
J. Scott
<image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com <mailto:jsevans@adobe.com> www.adobe.com <http://www.adobe.com/>
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearinghous...>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures?
I think any challenge mechanism that relies on good samaritans for enforcement is insufficient.
If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering.
If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money.
So it really takes a determined individual or company, with time and money, to pursue these challenges.
If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies.
- Bret
Agreed. Obtaining the domain is the goal and the system should be designed to allow an aggrieved party to achieve that goal. [ttps://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, Associate General Counsel 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 Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 9:05 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good. Bret On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>> wrote: First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost. J. Scott <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com/> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Bret Fausett <bret@uniregistry.com<mailto:bret@uniregistry.com>> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearinghous...>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures? I think any challenge mechanism that relies on good samaritans for enforcement is insufficient. If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering. If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money. So it really takes a determined individual or company, with time and money, to pursue these challenges. If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies. - Bret
I likewise agree. If the goal is to give the aggrieved party a bona fide remedy, then there should be no issue. The alleged abuse could be challenged just like tm owners can challenge alleged bogus and infringing domain names (as J.S has said). I would support such a fix in the system. But beyond that I see no need of opening the TMCH database (for the reasons that have already been articulated extensively over the past several days) From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 13, 2017 12:08 PM To: Bret Fausett; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Agreed. Obtaining the domain is the goal and the system should be designed to allow an aggrieved party to achieve that goal. [ttps://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, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Bret Fausett <bret@uniregistry.com<mailto:bret@uniregistry.com>> Date: Thursday, April 13, 2017 at 9:05 AM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good. Bret On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>> wrote: First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost. J. Scott <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com/> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Bret Fausett <bret@uniregistry.com<mailto:bret@uniregistry.com>> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearinghous...>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures? I think any challenge mechanism that relies on good samaritans for enforcement is insufficient. If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering. If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money. So it really takes a determined individual or company, with time and money, to pursue these challenges. If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies. - Bret ________________________________ 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.
You keep referencing prior articulations. "(for the reasons that have already been articulated extensively over the past several days)" I hae not seen anything but assertions that have been completely discredited by the actual evidence. Care to articulate? Sent from my iPad
On 13 Apr 2017, at 18:23, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I likewise agree. If the goal is to give the aggrieved party a bona fide remedy, then there should be no issue. The alleged abuse could be challenged just like tm owners can challenge alleged bogus and infringing domain names (as J.S has said). I would support such a fix in the system. But beyond that I see no need of opening the TMCH database (for the reasons that have already been articulated extensively over the past several days)
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 13, 2017 12:08 PM To: Bret Fausett; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Agreed. Obtaining the domain is the goal and the system should be designed to allow an aggrieved party to achieve that goal.
<image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 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 Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 9:05 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good.
Bret
On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com> wrote:
First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost.
J. Scott
<image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 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 Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures?
I think any challenge mechanism that relies on good samaritans for enforcement is insufficient.
If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering.
If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money.
So it really takes a determined individual or company, with time and money, to pursue these challenges.
If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies.
- Bret
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
Paul: With all due respect, you are just wrong on that point. I and others have responded to the alleged “evidence.” Go back and read all of the prior emails. What evidence exists is that at most a speculator gamed the system with some filings, but not any evidence of widespread or systematic abuse of the TMCH by brand owners. I guess it’s like the old political trick that if you repeat something that’s not true enough times, then folks will ultimately assume such is a fact. Now we can go over all of this yet again, but I think that this is not productive. If anything has been discredited, it is the insistence by you and others that there is a grand pattern of abuse by trademark owners. Many have suggested that we focus on a fix/tweek to the system to address the speculator issue and the remedy of sunrise challenges. I support such, but going on a fishing expedition with you on flimsy evidence is something that neither I nor others are willing to do. From: Paul Keating [mailto:paul@law.es] Sent: Thursday, April 13, 2017 1:11 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; Bret Fausett; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today You keep referencing prior articulations. "(for the reasons that have already been articulated extensively over the past several days)" I hae not seen anything but assertions that have been completely discredited by the actual evidence. Care to articulate? Sent from my iPad On 13 Apr 2017, at 18:23, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: I likewise agree. If the goal is to give the aggrieved party a bona fide remedy, then there should be no issue. The alleged abuse could be challenged just like tm owners can challenge alleged bogus and infringing domain names (as J.S has said). I would support such a fix in the system. But beyond that I see no need of opening the TMCH database (for the reasons that have already been articulated extensively over the past several days) From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 13, 2017 12:08 PM To: Bret Fausett; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Agreed. Obtaining the domain is the goal and the system should be designed to allow an aggrieved party to achieve that goal. <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Bret Fausett <bret@uniregistry.com<mailto:bret@uniregistry.com>> Date: Thursday, April 13, 2017 at 9:05 AM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good. Bret On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>> wrote: First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost. J. Scott <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com/> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Bret Fausett <bret@uniregistry.com<mailto:bret@uniregistry.com>> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearinghous...>) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures? I think any challenge mechanism that relies on good samaritans for enforcement is insufficient. If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering. If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money. So it really takes a determined individual or company, with time and money, to pursue these challenges. If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies. - Bret ________________________________ 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
Georges, Sorry but I have read them very carefully. All I have seen are assertions but never evidence. And, as noted by Mr. Kirkos, the evidence of contractual restriction is directly contradicted by the language of their own TOS. I include the following which was just published by Mary at ICANN. Please let me know where this supports a conclusion that this WG – tasked as we are tasked – are prohibited from seeing a list of the actual trademarks in the TMCH together with their respective basis for registration. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Thursday, April 13, 2017 at 7:26 PM To: Paul Keating <paul@law.es> Cc: "J. Scott Evans" <jsevans@adobe.com>, Bret Fausett <bret@uniregistry.com>, "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Paul:
With all due respect, you are just wrong on that point. I and others have responded to the alleged “evidence.” Go back and read all of the prior emails. What evidence exists is that at most a speculator gamed the system with some filings, but not any evidence of widespread or systematic abuse of the TMCH by brand owners. I guess it’s like the old political trick that if you repeat something that’s not true enough times, then folks will ultimately assume such is a fact. Now we can go over all of this yet again, but I think that this is not productive. If anything has been discredited, it is the insistence by you and others that there is a grand pattern of abuse by trademark owners. Many have suggested that we focus on a fix/tweek to the system to address the speculator issue and the remedy of sunrise challenges. I support such, but going on a fishing expedition with you on flimsy evidence is something that neither I nor others are willing to do.
From: Paul Keating [mailto:paul@law.es] Sent: Thursday, April 13, 2017 1:11 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; Bret Fausett; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
You keep referencing prior articulations.
"(for the reasons that have already been articulated extensively over the past several days)"
I hae not seen anything but assertions that have been completely discredited by the actual evidence. Care to articulate?
Sent from my iPad
On 13 Apr 2017, at 18:23, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
I likewise agree. If the goal is to give the aggrieved party a bona fide remedy, then there should be no issue. The alleged abuse could be challenged just like tm owners can challenge alleged bogus and infringing domain names (as J.S has said). I would support such a fix in the system. But beyond that I see no need of opening the TMCH database (for the reasons that have already been articulated extensively over the past several days)
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 13, 2017 12:08 PM To: Bret Fausett; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Agreed. Obtaining the domain is the goal and the system should be designed to allow an aggrieved party to achieve that goal.
<image001.gif> J. Scott Evans408.536.5336 (tel)345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel408.709.6162 (cell)San Jose, CA, 95110, USA Adobe. Make It an Experience.jsevans@adobe.comwww.adobe.com <http://www.adobe.com>
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 9:05 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
You’ll get no quarrel from me on imposing a cost. There are real costs involved for the companies that are required to review and adjudicate these disputes, so those costs should be reimbursed. I think challengers would be fine with the costs if the rewards were adjusted to ensure they had a better outcome (the domain in question). If they don’t get the domain at the end of the process, we are just counting on them to be working for the public good.
Bret
On Apr 13, 2017, at 9:00 AM, J. Scott Evans <jsevans@adobe.com> wrote:
First, if a person challenges a Sunrise Registration at the registry and wins, they should be awarded the domain name. Why is it the cost of obtaining a domain name from a bad-faith Sunrise registrant gets everyone up in arms, but the enormous cost of preventing fraud and consumer confusion borne by trademark owners is seen as “just the cost of doing business in the online world”? I am all for finding cost-effective mechanism for a good faith registrant to obtain a domain name the was improperly registered under Sunrise, but there is going to be a cost.
J. Scott
<image001.gif> J. Scott Evans408.536.5336 (tel)345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel408.709.6162 (cell)San Jose, CA, 95110, USA Adobe. Make It an Experience.jsevans@adobe.com <mailto:jsevans@adobe.com> www.adobe.com <http://www.adobe.com/>
From: <gnso-rpm-wg-bounces@icann.org> on behalf of Bret Fausett <bret@uniregistry.com> Date: Thursday, April 13, 2017 at 8:55 AM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
to the extent there are issues with the bona fides of individual registrations, the underlying trademark registration, and its recordal in the TMCH (www.trademark‑clearinghouse.com/dispute <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fclearingho use.com%2Fdispute&data=02%7C01%7C%7Cd34c513ef31a415c792b08d482858b3f%7Cfa7b 1b5a7b34438794aed2c178decee1%7C0%7C0%7C636276957460088884&sdata=XBslWFTeBK1 aE23jA09owCwmDa7iiVCRfvuev0%2FVVhU%3D&reserved=0> ) are already subject to challenge. Would you be able to help this group understand why you view these as insufficient measures?
I think any challenge mechanism that relies on good samaritans for enforcement is insufficient.
If I am pre-empted in my registration of “internet.TLD” or “online.TLD,” because someone had registered them in sunrise with “marks” that should not have been approved, my options at that point are to file a TMCH dispute, which costs at least $200 and will last for at least a month. At the end of that process, even if I am right, the trademark is marked as invalid, but I don’t get the domain name that I was blocked from registering.
If I want to file a sunrise challenge with the registry, depending on the registry’s policy, I may be awarded the domain name, but I am not guaranteed to be awarded the domain name. Those processes also take time and money.
So it really takes a determined individual or company, with time and money, to pursue these challenges.
If I were adjusting these processes for Round 2, I would give the complainant a presumptive right to register the challenged domains if and after the TMCH registration was deemed invalid. That would provide better motivation to pursue the existing remedies.
- Bret
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+1 GN From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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Georges and Marie, I'm Sorry but you are rather missing the point. The point is not to see who filed marks with the TMCH. The point is to see what marks were registered with the TMCH and the basis for acceptance. The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications. Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency. I also understand that while some have argued that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now has it not been waived? . And, of course, I don¹t think we need all of the data points on the list. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Thursday, April 13, 2017 at 5:50 PM To: Marie Pattullo <marie.pattullo@aim.be>, Paul Keating <paul@law.es>, 'Brian Scarpelli' <BScarpelli@actonline.org> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 GN
From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won¹t show you the ³abuse² you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn¹t show you any form of abusive, or benign, behaviour it¹s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves ³abuse² in the Claims Notices, but those Notices don¹t allow the TM owner to be abusive either they¹re just a heads up.
So with respect, I simply don¹t understand your repeated claims that you need access to this data to find ³abuse². In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn¹t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you¹ll forgive me for believing the contrary.
Kind regards
Marie
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli Senior Policy Counsel 517-507-1446 <tel:517-507-1446> | bscarpelli@actonline.org <mailto:bscarpelli@actonline.org> ACT | The App Association
From:gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating <paul@law.es> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E ,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Z kc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1 <https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c= E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_ Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > wrote:
There is a big difference from a database that contains all a company¹s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com <mailto:jsevans@adobe.com> www.adobe.com <http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm " <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote: >> George: >> >> We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data). >> >> 1. Do you have a suggestion for how to improve the Sunrise mechanism? >> 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation
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Paul, The distinction between WHO and WHAT is rather specious in the context of trademarks, given that the recognition of a connection between the mark and its source (as acknowledged by the existence of a registration) is a gating factor for entry into the TMCH. Bradley From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, April 13, 2017 2:09 PM To: Nahitchevansky, Georges; Marie Pattullo; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Georges and Marie, I'm Sorry but you are rather missing the point. The point is not to see who filed marks with the TMCH. The point is to see what marks were registered with the TMCH and the basis for acceptance. The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications. Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency. I also understand that while some have argued that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now - has it not been waived? . And, of course, I don't think we need all of the data points on the list. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, April 13, 2017 at 5:50 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Brian Scarpelli' <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 GN From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won't show you the "abuse" you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn't show you any form of abusive, or benign, behaviour - it's a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves "abuse" in the Claims Notices, but those Notices don't allow the TM owner to be abusive either - they're just a heads up. So with respect, I simply don't understand your repeated claims that you need access to this data to find "abuse". In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn't stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you'll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company's registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336! ________________________________ Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com<mailto:ITServices@timewarner.com> ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. =================================================================
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 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Thursday, April 13, 2017 8:09 PM To: Nahitchevansky, Georges; Marie Pattullo; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Georges and Marie, I'm Sorry but you are rather missing the point. The point is not to see who filed marks with the TMCH. The point is to see what marks were registered with the TMCH and the basis for acceptance. The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications. Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency. I also understand that while some have argued that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now - has it not been waived? . And, of course, I don't think we need all of the data points on the list. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, April 13, 2017 at 5:50 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Brian Scarpelli' <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 GN From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won't show you the "abuse" you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn't show you any form of abusive, or benign, behaviour - it's a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves "abuse" in the Claims Notices, but those Notices don't allow the TM owner to be abusive either - they're just a heads up. So with respect, I simply don't understand your repeated claims that you need access to this data to find "abuse". In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn't stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you'll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company's registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336! World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using.
I'll reiterate my earlier statement that we have to have a common understanding of what we mean by gaming/abuse before we investigate whatever it is. I don't see how "what" the mark is, without any indication of "who" owns it, is any indicator of gaming/abuse. Here's an example: "Carnation" is the name of a very common flower (and a "dictionary word"). CARNATION has been a U.S. registered trademark for condensed milk and related products since 1916 (not counting an even earlier registration for CARNATION BRAND dating back to 1900, the drawing for which consists of the word in a stylized form (script), along with a separate design). How would seeing CARNATION on the TMCH list (or the name of any other common object), without any other information, help with an investigation into gaming/abuse? Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com On Thu, Apr 13, 2017 at 2:27 PM, Beckham, Brian <brian.beckham@wipo.int> wrote:
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
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org] *On Behalf Of *Paul Keating *Sent:* Thursday, April 13, 2017 8:09 PM *To:* Nahitchevansky, Georges; Marie Pattullo; 'Brian Scarpelli'
*Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Georges and Marie,
I'm Sorry but you are rather missing the point.
The point is *not* to see *who* filed marks with the TMCH.
The point is to see *what* marks were registered with the TMCH and the basis for acceptance.
The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications.
Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency.
I also understand that while some have *argued* that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now – has it not been waived? . And, of course, I don’t think we need all of the data points on the list.
Regards,
*From: *Georges Nahitchevansky <ghn@kilpatricktownsend.com> *Date: *Thursday, April 13, 2017 at 5:50 PM *To: *Marie Pattullo <marie.pattullo@aim.be>, Paul Keating <paul@law.es>, 'Brian Scarpelli' <BScarpelli@actonline.org> *Cc: *"gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> *Subject: *RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 GN
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Marie Pattullo *Sent:* Thursday, April 13, 2017 10:42 AM *To:* 'Paul Keating'; 'Brian Scarpelli' *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list.
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
*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:* jeudi 13 avril 2017 16:22 *To:* Brian Scarpelli *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli
*Senior Policy Counsel *517-507-1446 | bscarpelli@actonline.org ACT | The App Association
*From:*gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Scott Austin *Sent:* Wednesday, April 12, 2017 12:46 PM *To:* Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating < paul@law.es> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 <(212)%20775-8720> | fax 212 775 8820 <(212)%20775-8820> ghn@kilpatricktownsend.com | https://linkprotect.cudasvc. com/url?a=https://www.kilpatricktownsend.com&c=E,1, kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_ Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 <(408)%20536-5336> (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 <(408)%20709-6162> (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Feff.org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81% 7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata= FLU88IUnUq0DTixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
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Good point 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: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Thursday, April 13, 2017 2:54 PM To: Beckham, Brian Cc: Paul Keating; Nahitchevansky, Georges; Marie Pattullo; Brian Scarpelli; gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today I'll reiterate my earlier statement that we have to have a common understanding of what we mean by gaming/abuse before we investigate whatever it is. I don't see how "what" the mark is, without any indication of "who" owns it, is any indicator of gaming/abuse. Here's an example: "Carnation" is the name of a very common flower (and a "dictionary word"). CARNATION has been a U.S. registered trademark for condensed milk and related products since 1916 (not counting an even earlier registration for CARNATION BRAND dating back to 1900, the drawing for which consists of the word in a stylized form (script), along with a separate design). How would seeing CARNATION on the TMCH list (or the name of any other common object), without any other information, help with an investigation into gaming/abuse? Greg Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> On Thu, Apr 13, 2017 at 2:27 PM, Beckham, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote: 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 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, April 13, 2017 8:09 PM To: Nahitchevansky, Georges; Marie Pattullo; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Georges and Marie, I'm Sorry but you are rather missing the point. The point is not to see who filed marks with the TMCH. The point is to see what marks were registered with the TMCH and the basis for acceptance. The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications. Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency. I also understand that while some have argued that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now – has it not been waived? . And, of course, I don’t think we need all of the data points on the list. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, April 13, 2017 at 5:50 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Brian Scarpelli' <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 GN From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720<tel:(212)%20775-8720> | fax 212 775 8820<tel:(212)%20775-8820> ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336<tel:(408)%20536-5336> (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162<tel:(408)%20709-6162> (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161<tel:(415)%20436-9333>
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gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336! World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using. _______________________________________________ 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
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. 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: Paul Keating [mailto:Paul@law.es] Sent: Thursday, April 13, 2017 2:09 PM To: Nahitchevansky, Georges; Marie Pattullo; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Georges and Marie, I'm Sorry but you are rather missing the point. The point is not to see who filed marks with the TMCH. The point is to see what marks were registered with the TMCH and the basis for acceptance. The list clearly shows the type of marks included and the basis for their inclusion. This in turn allows a determination as to whether or not the corresponding domain was registered in sunrise or not. This in turn allows the WG to find out the extent to which the TMCH is being abused so as to allow sunrise registrations that should not be permitted. It can also be cross-referenced against theist-sunrise notifications. Again, our task is to assess whether what exists is fit for purpose or not. If not, we are able to provide recommendations. It is possible that the TMCH is being abused and that as it stands is not fit for purpose. I am not so prejudiced to presume that there is no gaming. However, I am not predisposed to find abuse or to request changes to the existing system. I DO want to know. And, I am suspicious of those who resist a reasonable claim for transparency. I also understand that while some have argued that the information is confidential, I have not seen any contractual or legal provision granting it that status. Argument is not evidence. If the information was submitted per contract that did not protect confidentiality then there is frankly no basis to make such an argument now - has it not been waived? . And, of course, I don't think we need all of the data points on the list. Regards, From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, April 13, 2017 at 5:50 PM To: Marie Pattullo <marie.pattullo@aim.be<mailto:marie.pattullo@aim.be>>, Paul Keating <paul@law.es<mailto:paul@law.es>>, 'Brian Scarpelli' <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 GN From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Marie Pattullo Sent: Thursday, April 13, 2017 10:42 AM To: 'Paul Keating'; 'Brian Scarpelli' Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won't show you the "abuse" you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn't show you any form of abusive, or benign, behaviour - it's a list. The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves "abuse" in the Claims Notices, but those Notices don't allow the TM owner to be abusive either - they're just a heads up. So with respect, I simply don't understand your repeated claims that you need access to this data to find "abuse". In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn't stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you'll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E...
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company's registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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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<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. !DSPAM:58ef89a017161320412336!
All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries /ahead of time /to know what goods and services those trademarks protect is part of a due diligence, good faith search - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. We have decided to table this question -- Question #15 -- until /after/ the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy On 4/13/2017 10:41 AM, Marie Pattullo wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, .
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
*From:*gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Paul Keating *Sent:* jeudi 13 avril 2017 16:22 *To:* Brian Scarpelli *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org <mailto:BScarpelli@actonline.org>> wrote:
+1, I also agree.
Brian Scarpelli /Senior Policy Counsel /517-507-1446<tel:517-507-1446>| bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association
*From:*gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] *On Behalf Of *Scott Austin *Sent:* Wednesday, April 12, 2017 12:46 PM *To:* Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es <mailto:paul@law.es>> *Cc:* gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es <mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
> On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote: > > Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are > > 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>| https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E... > > > > -----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 Paul Keating > Sent: Tuesday, April 11, 2017 5:58 PM > To: J. Scott Evans > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today > > It says at most which domains it wants pre-emptiness and notice rights over. > > Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret. > > And hardly sufficient to use to hide bad actors. > > > > Sent from my iPad > >> On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> wrote: >> >> There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not. >> >> J. Scott >> >> >> J. Scott Evans >> 408.536.5336 (tel) >> 345 Park Avenue, Mail Stop W11-544 >> Director, Associate General Counsel >> 408.709.6162 (cell) >> San Jose, CA, 95110, USA >> Adobe. Make It an Experience. >> jsevans@adobe.com <mailto:jsevans@adobe.com> >> www.adobe.com <http://www.adobe.com> >> >> >> >> >> On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote: >> >> On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote: >>> George: >>> >>> We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data). >>> >>> 1. Do you have a suggestion for how to improve the Sunrise mechanism? >>> 2. I see very little support for violating the confidentiality provisions of the TMCH contract. >> >> FWIW I am also all for bringing the transparency of the TMCH database >> into line with those of national trademark registries so that its >> secrecy does not facilitate the kinds of abuses that George has >> uncovered. I have been an observer until now but I've just upgraded to >> member and plan to join the call tomorrow. >> >> -- >> Jeremy Malcolm >> Senior Global Policy Analyst >> Electronic Frontier Foundation >> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... >> jmalcolm@eff.org <mailto:jmalcolm@eff.org> >> >> Tel: 415.436.9333 ext 161 >> >> :: Defending Your Rights in the Digital World :: >> >> Public key: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org... >> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122 >> >> >> >> >> _______________________________________________ >> 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
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Kathy: I want to address a few comments made in your note below. See my comments in red inline below. J. Scott [ttps://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, Associate General Counsel 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 Kathy Kleiman <kathy@kathykleiman.com> Date: Thursday, April 13, 2017 at 12:47 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards. - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts. - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries ahead of time to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search. - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage. We have decided to table this question -- Question #15 -- until after the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy On 4/13/2017 10:41 AM, Marie Pattullo wrote: Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, . The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C30e5ff8984c44d2d353108d482a60b25%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277097040327053&sdata=0sjADnWg0DXYUKMkxlUag4Zv8k%2Fy%2FTFsch%2BgVnNAuE8%3D&reserved=0>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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Speaking as the compliance contact of a registry, it has been helpful for me in the past that the TMCH database was secret. My tech people had access to it and, where necessary (I believe I used this once, to confirm that a particular trademark existed in the database), I could reach out to them for certain things, but I have a hard enough time convincing sales that [trademark].vodka is not a premium name without giving them a list of delicious looking names. Forcing them to create their own master lists of premiums was annoying, time consuming, and expensive for the registry but saved more time and expense than allowing them to salivate over a list of trademarks. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7
On 13 Apr 2017, at 12:56, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
Kathy:
I want to address a few comments made in your note below. See my comments in red inline below.
J. Scott
<image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 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 Kathy Kleiman <kathy@kathykleiman.com> Date: Thursday, April 13, 2017 at 12:47 PM To: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open?
All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards. - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts. - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries ahead of time to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search. - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage. We have decided to table this question -- Question #15 -- until after the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy
On 4/13/2017 10:41 AM, Marie Pattullo wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, .
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely, Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org <mailto:BScarpelli@actonline.org>> wrote:
+1, I also agree. <>
Brian Scarpelli Senior Policy Counsel 517-507-1446 <tel:517-507-1446> | bscarpelli@actonline.org <mailto:bscarpelli@actonline.org> ACT | The App Association
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 Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es <mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es <mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E... <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect...>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com <mailto:jsevans@adobe.com> www.adobe.com <http://www.adobe.com/>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat...> jmalcolm@eff.org <mailto:jmalcolm@eff.org>
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Thanks Reg, that’s a really useful alternative take on the benefits of not having the TMCH records open Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: 13 April 2017 21:07 To: J. Scott Evans <jsevans@adobe.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? Speaking as the compliance contact of a registry, it has been helpful for me in the past that the TMCH database was secret. My tech people had access to it and, where necessary (I believe I used this once, to confirm that a particular trademark existed in the database), I could reach out to them for certain things, but I have a hard enough time convincing sales that [trademark].vodka is not a premium name without giving them a list of delicious looking names. Forcing them to create their own master lists of premiums was annoying, time consuming, and expensive for the registry but saved more time and expense than allowing them to salivate over a list of trademarks. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 13 Apr 2017, at 12:56, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Kathy: I want to address a few comments made in your note below. See my comments in red inline below. J. Scott <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Date: Thursday, April 13, 2017 at 12:47 PM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards. - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts. - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries ahead of time to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search. - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage. We have decided to table this question -- Question #15 -- until after the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy On 4/13/2017 10:41 AM, Marie Pattullo wrote: Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, . The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C30e5ff8984c44d2d353108d482a60b25%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277097040327053&sdata=0sjADnWg0DXYUKMkxlUag4Zv8k%2Fy%2FTFsch%2BgVnNAuE8%3D&reserved=0>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com/>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
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+1 From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Susan Payne Sent: Thursday, April 13, 2017 2:12 PM To: Reg Levy <reg@mmx.co>; J. Scott Evans <jsevans@adobe.com> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? Thanks Reg, that’s a really useful alternative take on the benefits of not having the TMCH records open Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Reg Levy Sent: 13 April 2017 21:07 To: J. Scott Evans <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? Speaking as the compliance contact of a registry, it has been helpful for me in the past that the TMCH database was secret. My tech people had access to it and, where necessary (I believe I used this once, to confirm that a particular trademark existed in the database), I could reach out to them for certain things, but I have a hard enough time convincing sales that [trademark].vodka is not a premium name without giving them a list of delicious looking names. Forcing them to create their own master lists of premiums was annoying, time consuming, and expensive for the registry but saved more time and expense than allowing them to salivate over a list of trademarks. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7 On 13 Apr 2017, at 12:56, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote: Kathy: I want to address a few comments made in your note below. See my comments in red inline below. J. Scott <image001.gif> J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com> From: <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Kathy Kleiman <kathy@kathykleiman.com<mailto:kathy@kathykleiman.com>> Date: Thursday, April 13, 2017 at 12:47 PM To: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open? All, Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including: - that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards. - that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts. - that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries ahead of time to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search. - that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage. We have decided to table this question -- Question #15 -- until after the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list. Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input. Best, Kathy On 4/13/2017 10:41 AM, Marie Pattullo wrote: Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, . The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up. So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option. It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary. Kind regards Marie 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: jeudi 13 avril 2017 16:22 To: Brian Scarpelli Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today George and Brian, You seem to have an agenda. And thou protest too much. Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation. Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action. I am not certain if anything beyond the mark's is necessary. I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation. If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse. Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution. What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating. Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs. Sincerely, Paul Keating, Esq. On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org<mailto:BScarpelli@actonline.org>> wrote: +1, I also agree. Brian Scarpelli Senior Policy Counsel 517-507-1446<tel:517-507-1446> | bscarpelli@actonline.org<mailto:bscarpelli@actonline.org> ACT | The App Association From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Scott Austin Sent: Wednesday, April 12, 2017 12:46 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Paul Keating <paul@law.es<mailto:paul@law.es>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today +1 Georges. Opacity, well put. Transparency as subterfuge, what a concept. -------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es<mailto:paul@law.es>> CC: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today 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. Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today George, You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic. Happy to discuss Whois separately. Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
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> | https://linkprotect.cudasvc.com/url?a=https://www.kilpatricktownsend.com&c=E,1,kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttps%3A%2F%2Fwww.kilpatricktownsend.com%26c%3DE%2C1%2CkgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0%26typo%3D1&data=02%7C01%7C%7C30e5ff8984c44d2d353108d482a60b25%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277097040327053&sdata=0sjADnWg0DXYUKMkxlUag4Zv8k%2Fy%2FTFsch%2BgVnNAuE8%3D&reserved=0>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com/>
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20Jeremy%20Malcolm>" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Feff.org&dat... jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161
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Reg, thanks for that viewpoint. J Scott, thanks for setting the record straight. Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com On Thu, Apr 13, 2017 at 5:15 PM, Kiran Malancharuvil via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
+1
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org] *On Behalf Of *Susan Payne *Sent:* Thursday, April 13, 2017 2:12 PM *To:* Reg Levy <reg@mmx.co>; J. Scott Evans <jsevans@adobe.com>
*Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open?
Thanks Reg, that’s a really useful alternative take on the benefits of not having the TMCH records open
*Susan Payne*
*Head of Legal Policy* | *Valideus Ltd*
28-30 Little Russell Street
London, WC1A 2HN, United Kingdom
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>
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Reg Levy *Sent:* 13 April 2017 21:07 *To:* J. Scott Evans <jsevans@adobe.com> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open?
Speaking as the compliance contact of a registry, it has been helpful for me in the past that the TMCH database *was* secret.
My tech people had access to it and, where necessary (I believe I used this *once*, to confirm that a particular trademark existed in the database), I could reach out to them for certain things, but I have a hard enough time convincing sales that [trademark].vodka is *not* a premium name without giving them a list of delicious looking names. Forcing them to create their own master lists of premiums was annoying, time consuming, and expensive for the registry but saved more time and expense than allowing them to salivate over a list of trademarks.
/R
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 <(310)%20963-7135> S: RegLevy2
Current UTC offset: -7
On 13 Apr 2017, at 12:56, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
Kathy:
I want to address a few comments made in your note below. See my comments in red inline below.
J. Scott
<image001.gif>
*J. Scott Evans*
408.536.5336 <(408)%20536-5336> (tel)
345 Park Avenue, Mail Stop W11-544
Director, Associate General Counsel
408.709.6162 <(408)%20709-6162> (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 Kathy Kleiman < kathy@kathykleiman.com> *Date: *Thursday, April 13, 2017 at 12:47 PM *To: *"gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> *Subject: *[gnso-rpm-wg] [renamed] TMCH Charter Question #15 - Should TMCH Database remain confidential or become open?
All,
Important arguments, issues and concerns have been made on both sides of this question. There are arguments in favor of the confidentiality of the TMCH Database. There are certainly arguments that been made in favor of the openness of the TMCH Database, including:
- that it was originally open (that's what the GNSO Council and ICANN Board passed) I vehemently disagree. I was on the IRT and I remember Kristina Rosette being extremely vocal on the point of confidentiality during the IRT process and afterwards.
- that a key rationale for keeping the TMCH database open and searchable by 3rd parties was to allow a level of self-policing by registrants -- to allow them to better understand the Trademark Claims notices they might be receiving I disagree. The reasoning for making the Claims Notice so wordy and voluminous was to give the applicant the information they might need to conduct an investigation on their own. There was never, in my memory, the idea of the TMCH database being a tool for applicants and/or registrants. The basic reasoning behind creation of the TMCH was to create a singular point for validation so that TRADEMARK owners would not need to comply with hundreds of different validation methodologies for the Sunrise periods that have been available in all new gTLD rollouts.
- that for noncommercial organizations and SMEs trying to name new groups, services and products, the ability to search the TMCH Database entries *ahead of time *to know what goods and services those trademarks protect is part of a due diligence, good faith search Responsible parties already have this ability. Its called conducting a trademark search.
- that there might be gaming in the Sunrise Period, the TM Claims and Private Protections using the TMCH Database in ways it was not intended for purposes and protections it was not intended to provide. I have not seen a systems yet in the DNS that someone, somewhere has not found a way to game for their advantage.
We have decided to table this question -- Question #15 -- until *after* the RPM evaluation. That time period should allow us to evaluate the range of issues, questions, options and alternatives being discussed very quickly on this list.
Quick note that the time will allow our wonderful Staff to summarize the questions, issues, options, alternatives and resolutions being shared so rapidly on this list for Question #15 -- so that all Members and Observers of this WG have the time to evaluate and provide input.
Best, Kathy
On 4/13/2017 10:41 AM, Marie Pattullo wrote:
Brand holders have repeatedly explained why the data in the TMCH is confidential, Paul. Access to that data won’t show you the “abuse” you believe you may find: it will simply show you a list of the marks that a brand owner has paid to record in the TMCH. Why do you want to know that, please? That list doesn’t show you any form of abusive, or benign, behaviour – it’s a lis, .
The (small) Sunrise take-up provides no evidence of mass abusive registration. So that leaves “abuse” in the Claims Notices, but those Notices don’t allow the TM owner to be abusive either – they’re just a heads up.
So with respect, I simply don’t understand your repeated claims that you need access to this data to find “abuse”. In cases where there are questionable base marks, there are cancellation proceedings before IPOs. There are means to dispute a Sunrise allocation. Receiving a Claims Notice doesn’t stop you registering a DN. And taking a case in bad faith, or against bad faith, is always an option.
It is of course your right to believe that you should have access to the commercial strategy of brand holders; you’ll forgive me for believing the contrary.
Kind regards
Marie
*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:* jeudi 13 avril 2017 16:22 *To:* Brian Scarpelli *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
George and Brian,
You seem to have an agenda. And thou protest too much.
Our collective task is to investigate and make recommendations. It isn't possible to do either if denied access to I formation.
Regarding TMCH I only ask for a list of the mark's under registration. This is to see IF there has been abuse and IF SO then whether it reaches to the level of requiring corrective action.
I am not certain if anything beyond the mark's is necessary.
I repeatedly hear that the TMCH is confidential. I have not seen anything to support such a claim. The terms provided by George showed no basis for a privacy expectation.
If the list of the mark's in the TMCH database shows no abuse I will join the obvious majority to recommend no corrective action. For you surely cannot believe that this group would support changes in the absence of abuse.
Conversely if abuse is shown and the abuse is serious enough to warrant corrective action I trust you will join with me I crafting an appropriate solution.
What is required is a list of marks and the basis for submission. I am not at all sure how the registrant ID would be relevant. Hence I have no understanding how it could be confidential. Thus I have no idea what you are trying so hard to hide. But will tell you that the harder you try the more I will be interested in investigating.
Whois is a completely separate issue with vastly different privacy concerns. I am happy to address the WHOIS and the TMCH issues within their respective WGs.
Sincerely,
Paul Keating, Esq.
On Apr 13, 2017, at 1:26 PM, Brian Scarpelli <BScarpelli@actonline.org> wrote:
+1, I also agree.
Brian Scarpelli
*Senior Policy Counsel *517-507-1446 | bscarpelli@actonline.org ACT | The App Association
*From:* gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@ icann.org <gnso-rpm-wg-bounces@icann.org>] *On Behalf Of *Scott Austin *Sent:* Wednesday, April 12, 2017 12:46 PM *To:* Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Paul Keating < paul@law.es> *Cc:* gnso-rpm-wg@icann.org *Subject:* Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
+1 Georges. Opacity, well put. Transparency as subterfuge, what a concept.
-------- Original Message -------- From: "Nahitchevansky, Georges" <ghn@kilpatricktownsend.com> Date: Wed, Apr 12, 2017, 8:08 AM To: Paul Keating <paul@law.es> CC: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
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.
Original Message From: Paul Keating Sent: Tuesday, April 11, 2017 6:33 PM To: Nahitchevansky, Georges Cc: J. Scott Evans; gnso-rpm-wg@icann.org Subject: Re: Action Items, Slides and Notes from the Working Group call held earlier today
George,
You can always quote me. I say what I have said. I only ask that you quote me accurately. The discussion here is the TMCH database. Please let's stay on topic.
Happy to discuss Whois separately.
Sent from my iPad
On 12 Apr 2017, at 00:18, Nahitchevansky, Georges < ghn@kilpatricktownsend.com> wrote:
Can I quote you in this on having an open and robust whois so we can have across the board actual and real information on the parties registering domain names and know who the bad actors are
Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 <(212)%20775-8720> | fax 212 775 8820 <(212)%20775-8820> ghn@kilpatricktownsend.com | https://linkprotect.cudasvc. com/url?a=https://www.kilpatricktownsend.com&c=E,1, kgJUlMQkaC7zcn6Rs66Ti2At9D_Ui1TtDyL3pG1zG__KTS7tVBHLK8dmlR-Js0Y7uaJnKxz_ Zkc5RY8ItO8pCAXh9h_yFUPJgf2JB9nUCVpnQzK0&typo=1 <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect...>
-----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 Paul Keating Sent: Tuesday, April 11, 2017 5:58 PM To: J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
It says at most which domains it wants pre-emptiness and notice rights over.
Hardly a confidential business secret. The information is a public record. And, After all the Information is instantly public the minute one pre-emptive sunrise registration is undertaken. The notice right is completely a non secret.
And hardly sufficient to use to hide bad actors.
Sent from my iPad
On 11 Apr 2017, at 23:18, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
There is a big difference from a database that contains all a company’s registered marks and one that contains a culling for only those it deems most valuable for protection in the DNS. The former is clearly open for the public, the later is not.
J. Scott
J. Scott Evans 408.536.5336 <(408)%20536-5336> (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 <(408)%20709-6162> (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com www.adobe.com
On 4/11/17, 2:03 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Jeremy Malcolm" <gnso-rpm-wg-bounces@icann.org on behalf of jmalcolm@eff.org <gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20jmalcolm@eff.org>> wrote:
On 11/4/17 9:43 am, J. Scott Evans via gnso-rpm-wg wrote:
George:
We have all followed this string. We understand that you and a few others believe there need to be wholesale changes to the Sunrise mechanism and the TMCH database (or at least the confidentiality of that data).
1. Do you have a suggestion for how to improve the Sunrise mechanism? 2. I see very little support for violating the confidentiality provisions of the TMCH contract.
FWIW I am also all for bringing the transparency of the TMCH database into line with those of national trademark registries so that its secrecy does not facilitate the kinds of abuses that George has uncovered. I have been an observer until now but I've just upgraded to member and plan to join the call tomorrow.
-- Jeremy Malcolm Senior Global Policy Analyst Electronic Frontier Foundation https://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Feff.org&data=02%7C01%7C%7C2528000b02f744c8d69a08d4811e3b81% 7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275414221363260&sdata= FLU88IUnUq0DTixWIhDAELHUtjhYZgxqHGr8ihACkQ8%3D&reserved=0 jmalcolm@eff.org
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On 12/4/17 5:09 am, Nahitchevansky, Georges wrote:
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.
It doesn't seem like an inconsistency to me, since the protection of personally identifiable information is a fundamental human right, whereas the protection of commercial confidentiality is not. But you can support the protection of PII while simultaneously working to improve access to registration data for legitimate purposes. -- 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
participants (19)
-
Beckham, Brian -
Bret Fausett -
Brian Scarpelli -
Colin O'Brien -
George Kirikos -
Greg Shatan -
J. Scott Evans -
Jeremy Malcolm -
Kathy Kleiman -
Kiran Malancharuvil -
Marie Pattullo -
Michael Karanicolas -
Nahitchevansky, Georges -
Paul Keating -
Paul Tattersfield -
Reg Levy -
Scott Austin -
Silver, Bradley -
Susan Payne