Actually, here's an even better example, Flowers.baby: https://whois.domaintools.com/flowers.baby Creation Date: 2016-11-30T14:31:05Z According to the schedule at: https://www.safenames.net/nTLD/NewGtldsByGenericGroup/baby.aspx The Sunrise was from October 3, 2016 to December 2, 2016, so that clearly falls in the appropriate time frame. Land rush wasn't until December 5, 2016. General availability starts tomorrow (April 12, 2017). Operated by Neustar (non-Donuts). Also, Flowers.news is registered to you 1-800-Flowers.com: https://whois.domaintools.com/flowers.news with a creation date 2015-07-06T08:21:46Z that happens to be the same as that of Google.news: https://whois.domaintools.com/google.news (2015-07-06T08:21:49Z) give or take a few seconds. (.news does share the same backend as Donuts, I believe, but is run by Rightside). I won't waste my DomainTools.com credits to check the WHOIS history, though. I think the point's been made. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Apr 11, 2017 at 9:59 AM, George Kirikos <icann@leap.com> wrote:

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flowers.mi...

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote:

...

So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote:

...

How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote:

...

George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

...

On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote:

Hello,

On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote:

...

That one is not a smoking gun. It is a legitimate registration by a legitimate entity.

So, let me get this straight. Are you saying that if my company went out and registered a TM in some obscure jurisdiction like Tunisia, for the brand MATH, in the goods and services of "math education", used that mark in the TMCH to register MATH.TLD domains ahead of every other competitor in the math industry during sunrise, and then redirected the resulting domains to Math.com, that would be a "legitimate registration by a legitimate entity"?

I think most people would say "George, you gamed the system." and rightly so.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

Brian: Georges Nahitchevansky had asserted: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001366.html "whole basis of the alleged abuse is ancedotal evidence of a couple of speculators" "To put it bluntly, there hea been no evidence presented that bona fide brand owners are abusing the TMCH system in order to horde common terms or stiffle free speech." I'm presenting more evidence, that it's not just a "couple of speculators". It's our duty as a working group that is reviewing to gather and collect the data. What are you afraid that the data is going to reveal? Perhaps you don't consider "FLOWERS" to be a common term, or that 1-800-Flowers.com is not some mainstream brand. Others in prior emails challenged us to look at the common dictionary terms, and look for evidence. This is another example. I think it's fair game to change people's minds through argument and evidence. We're supposed to do a review, not pretend to do one and say that we did. Some people's minds are so closed, that no amount of evidence can change their position. I'm more optimistic than that. As more and more evidence emerges, the calculation of the costs vs. benefits change. Perhaps some obstructionists who want to cling to the status quo would prefer that situation, rather than see what happens when the costs vs. benefits calculation reaches a tipping point that says "costs of the sunrise period outweigh the benefits". Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Apr 11, 2017 at 11:13 AM, Beckham, Brian <brian.beckham@wipo.int> wrote:

George,

If your point is that some actors game a system I think that ground is well worn by now.

You suggested in another email that we ought to do away with sunrises.

Given the many views expressed on this list rejecting that idea (noting also the possibility to challenge the trademark registration, or its recordal in the TMCH (www.trademark-clearinghouse.com/dispute)), it is not clear what else can constructively be added to the discussion at this point.

Perhaps in advance of our call tomorrow, our co-chairs wish to weigh in?

Regards,

Brian

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 4:30 PM To: Jon Nevett 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, here's an even better example, Flowers.baby:

https://whois.domaintools.com/flowers.baby

Creation Date: 2016-11-30T14:31:05Z

According to the schedule at:

https://www.safenames.net/nTLD/NewGtldsByGenericGroup/baby.aspx

The Sunrise was from October 3, 2016 to December 2, 2016, so that clearly falls in the appropriate time frame. Land rush wasn't until December 5, 2016.

General availability starts tomorrow (April 12, 2017). Operated by Neustar (non-Donuts).

Also, Flowers.news is registered to you 1-800-Flowers.com:

https://whois.domaintools.com/flowers.news

with a creation date 2015-07-06T08:21:46Z that happens to be the same as that of Google.news:

https://whois.domaintools.com/google.news (2015-07-06T08:21:49Z)

give or take a few seconds. (.news does share the same backend as Donuts, I believe, but is run by Rightside). I won't waste my DomainTools.com credits to check the WHOIS history, though. I think the point's been made.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:59 AM, George Kirikos <icann@leap.com> wrote:

...

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flow ers.miami&date=2015-10-02&origin=permalink

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote:

...

So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote:

...

How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote:

...

George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

...

On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote:

Hello,

On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: > That one is not a smoking gun. It is a legitimate registration by a legitimate entity.

So, let me get this straight. Are you saying that if my company went out and registered a TM in some obscure jurisdiction like Tunisia, for the brand MATH, in the goods and services of "math education", used that mark in the TMCH to register MATH.TLD domains ahead of every other competitor in the math industry during sunrise, and then redirected the resulting domains to Math.com, that would be a "legitimate registration by a legitimate entity"?

I think most people would say "George, you gamed the system." and rightly so.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

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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.

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://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

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

_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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 ::

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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Not once has anyone from "your side"given a factual and legal reason. As to this prior discussion please let me know when it took place. Sent from my iPad

On 12 Apr 2017, at 00:33, J. Scott Evans <jsevans@adobe.com> wrote:

We have been through this all before. You’ve made these points and the advocates for the confidentiality of the data have clearly argued why your position is faulty. I agree to disagree with your position. If this information were so easily obtained (it is all publicly available), you’d have it.

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, 2:57 PM, "Paul Keating" <paul@law.es> wrote:

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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Hi, Thanks very much for forwarding this mail on. I think it's very helpful to this discussion to spell out the rationale for confidentiality. I wonder if someone from the pro-confidentiality side could spell out, in a bit more detail, why the first point is a problem. I understand, of course, why domain squatting is problematic, but I am not sure I fully understand how opening the TMCH database would facilitate that. More information along these lines would, I think, be helpful in trying to brainstorm out solutions or compromises which may facilitate transparency while protecting the interests that many here have expressed concern about. Best, Michael On Wed, Apr 12, 2017 at 5:46 AM, Beckham, Brian <brian.beckham@wipo.int> wrote:

Paul,

Without commenting on the merits of either "side" among others, the attached email from Brian Winterfeldt (dated 28-Mar) seems to go to the question you were then, and are now still, asking.

Regards,

Brian

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Wednesday, April 12, 2017 12:49 AM 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

Not once has anyone from "your side"given a factual and legal reason.

As to this prior discussion please let me know when it took place.

Sent from my iPad

...

On 12 Apr 2017, at 00:33, J. Scott Evans <jsevans@adobe.com> wrote:

We have been through this all before. You’ve made these points and the advocates for the confidentiality of the data have clearly argued why your position is faulty. I agree to disagree with your position. If this information were so easily obtained (it is all publicly available), you’d have it.

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, 2:57 PM, "Paul Keating" <paul@law.es> wrote:

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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---------- Forwarded message ---------- From: "Winterfeldt, Brian J." <BWinterfeldt@mayerbrown.com> To: "'gnso-rpm-wg@icann.org'" <gnso-rpm-wg@icann.org> Cc: Bcc: Date: Tue, 28 Mar 2017 20:48:30 +0000 Subject: Re: [gnso-rpm-wg] FOR INFORMATION: Letter from trademark scholars and information on Deloitte Ancillary Services

Hi all,

We are hesitant to weigh in at this time, and would have preferred to wait until we actually reached substantive discussion of TMCH Charter Question 15 in our Work Plan/meeting agenda. However, in light of prior interventions, we felt it appropriate to provide some initial comments regarding an open versus closed TMCH database.

A number of very valid reasons have previously been put forward as to why the TMCH database should remain confidential, which we attempt to summarize below:

· Making the TMCH database fully open would simply encourage gaming by parties who may wish to use this data in bad faith (e.g. cybersquatters looking to capitalize on gaps in TMCH records by various brand owners), and facilitate gaming by contracted parties around premium names, reserved names, and potentially other abusive practices that would harm brand owners;

· The content within the TMDB arguably constitutes trade secret information under applicable local law, confirming the most-highly valued and fervently protected brands belonging to each TMCH record holder. Publication of that content would impermissibly disclose proprietary trademark enforcement and defensive domain name registration strategies, enabling a variety of bad actors to assess which trademarks the trademark owner believes are highly valued and necessary to protect in the TMCH, and which brands are missing (possibly as a result of budgetary constraints or other practical considerations) and provide a roadmap to target perceived vulnerabilities;

· Distribution of the TMDB content would violate the TMDB Terms of Service insomuch as TMCH record holders provide a license to that content, which explicitly prohibits any distribution, display or performance. See TMDB Terms and Conditions, Article 5.5. This contractual prohibition against disclosure can be considered to constitute a reasonable measure taken to ensure the confidentiality of the aforementioned proprietary trademark enforcement and defensive domain name registration strategies.

· There is no clear need to open the TMCH database for public access, as Trademark Claims notices provide individual notice/information on an as-needed basis (at least during the Trademark Claims period for each new gTLD); and

· There is no clear need to open the TMCH database for public access, as underlying trademarks can continue to be searched in the various national/regional trademark databases for purposes of conducting domain name registration due diligence (as several, on both sides of the debate, have highlighted).

We appreciate comments that maintaining confidentiality of this database appears, on first blush, contrary to overall efforts to improve ICANN transparency. But this information is not ICANN information or documents produced by ICANN – it is information provided by individual private parties in order to participate in the RPMs. This is a key difference.

If an individual registrant encounters a TMCH record (via a Trademark Claims notice) that it believes should not be recorded in the TMCH, then it can file a challenge pursuant to the mechanism outlined in the TMCH Dispute Resolution Procedures (Section 3.3). If a prospective registrant encounters a Sunrise domain name registration it believes should not exist, then it can file a challenge pursuant to the Sunrise Dispute Resolution Policy of the applicable registry operator. Most importantly, the individual can also challenge the underlying trademark record in the relevant national/regional trademark office or a court of competent jurisdiction. Again, all of the marks in the TMCH are already publicly available in national/regional trademark registers/databases (or in publicly-available statutes or court decisions, if those happen to be the bases for the mark’s inclusion in the TMCH).

On balance, it seems the actual need to preserve confidentiality of the overall TMCH database outweighs the alleged need for general public access to the database.

Again, we hope to discuss this issue further at the appropriate time, and appreciate the Working Group’s consideration of these initial thoughts.

Best regards,

Brian, Sarah, Phil and Griffin

Brian J. Winterfeldt

Co-Head of Global Brand Management and Internet Practice

Mayer Brown LLP

bwinterfeldt@mayerbrown.com

1999 K Street, NW

Washington, DC 20006-1101

202.263.3284 direct dial

202.830.0330 fax

1221 Avenue of the Americas

New York, New York 10020-1001

212.506.2345 direct dial

From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, March 28, 2017 2:45 PM To: Greg Shatan; Michael Karanicolas Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] FOR INFORMATION: Letter from trademark scholars and information on Deloitte Ancillary Services

Personally I have yet to hear a valid reason for having the database closed:

1. All underlying trademarks are public record

2. All TMCH registrants have the right to secure the relevant domain names during sunrise (or simply freeze them per Donuts)

3. The TMCH has a notice provision should # 2 not be selected but the mark holder or the domain is an “equal” to the TMCH entry

4. The URS exists

5. The UDRP exists

6. The Courts exist.

The only concern I have heard is that cybersquatters may register the actual mark or around the mark. This is not a real issue:

A. The mark holder can register

B. The mark holder can exclude (via Donuts)

C. The mark holder can issue a notice

D. The mark holder can use the URS

E. The mark holder can use the UDRP

F. The mark holder can use the judicial system

HOWEVER, on the flip side, we keep hearing about all of these TMCH entries that would cause your grandmother to roll in her grave. This COULD be perceived as an attempt by the mark holders to keep quiet about THEIR land grab based on claims that are entirely generic (JSCOTT – sorry) and have no business being included in a preemptive preclusion that if used against our own personal interests would be deemed offensive.

SHOW ME THE LIST (drain the swamp), however you want to say it. Get it out in the open. Look at it. If there is no issue then ignore it. The more you try to keep something hidden the more people want to see it – distrusting the reasons for keeping it hidden in the first place.

My 2C.

Paul Keating

From: <gnso-rpm-wg-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com> Date: Tuesday, March 28, 2017 at 6:30 PM To: Michael Karanicolas <michael@law-democracy.org> Cc: "gnso-rpm-wg@icann.org" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] FOR INFORMATION: Letter from trademark scholars and information on Deloitte Ancillary Services

Michael,

Do you have any solutions for the issues and concerns that have been mitigated by having the database be closed?

Thanks!

Greg

Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com

On Tue, Mar 28, 2017 at 12:21 PM, Michael Karanicolas <michael@law-democracy.org> wrote:

Hi all,

Just building on the discussion around transparency, after hearing the conversation at ICANN 58 I drafted my own short note setting out my thoughts on the issue, which I'm attaching here.

I want to be mindful of the conversation on inputs which is ongoing now - so hopefully it isn't out of place or inappropriate to submit my thoughts via this method.

I very much look forward to further discussions on this issue.

Best wishes,

Michael Karanicolas

On Tue, Mar 28, 2017 at 11:54 AM, Jeff Neuman <jeff.neuman@comlaude.com> wrote:

...

Thanks Mary.

Co-Chairs,

Can I assume that with respect to the EFF letter, the only items we would be discussing from that letter at this point are their comments with respect to design marks and the transparency of the TMCH database?

I am not saying the other comments are not important, but with respect to this Working Group at this time, we are not yet addressing those other issues.

I would strongly urge that we not engage yet in the other discussion around the other comments at this point (namely, trademark rights in general), as I think that could lead us down a large rabbit hole and considerably slow down out work.

Thanks.

Jeffrey J. Neuman

Senior Vice President |Valideus USA | Com Laude USA

1751 Pinnacle Drive, Suite 600

Mclean, VA 22102, United States

E: jeff.neuman@valideus.com or jeff.neuman@comlaude.com

T: +1.703.635.7514

M: +1.202.549.5079

@Jintlaw

From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Mary Wong Sent: Tuesday, March 28, 2017 6:15 AM To: gnso-rpm-wg@icann.org Subject: [gnso-rpm-wg] FOR INFORMATION: Letter from trademark scholars and information on Deloitte Ancillary Services

Dear all,

During the ICANN58 Working Group sessions in Copenhagen, the following two matters came up for which staff is now following up with the requested document (for #1) and information (for #2).

Item #1: Letter of 10 March 2017 from some trademark scholars and practitioners to our Working Group co-chairs expressing concerns with certain aspects of the TMCH: https://www.eff.org/files/2017/03/10/tm_scholars_letter_to_icann_final.pdf.

Item #2: Question regarding the Ancillary Services that Deloitte is permitted to provide under its Validation Agreement with ICANN, subject to ICANN’s authorization.

Currently, two Ancillary Services have been approved by ICANN:

1. Extended Claims Services

The extended claims services provide the Trademark Holder or Trademark Agent, as applicable, with an electronic notification when a domain name registered in an Eligible TLD matches one or more of such party’s recorded labels with the TMCH. The extended claims services does not include a domain name pre-registration notification (i.e. a notification to the potential registrant of a domain name that the domain name such registrant intends to register matches a label recorded with the Trademark Clearinghouse).

2. Audit Report

Deloitte may offer an audit report service for Trademark Holders and Trademark Agents with active Trademark Records recorded in the Trademark Clearinghouse. Such audit reports shall consist primarily of a listing of matches between their recorded labels within the Trademark Clearinghouse and domain names registered in an Eligible TLD.

FYI, Deloitte’s contract with ICANN is for an initial period expiring on the fifth anniversary of ICANN’s entry into a Registry Agreement under the New gTLD Program, with consecutive one-year renewals thereafter. Although Deloitte currently serves as the sole TMCH validator, ICANN may appoint additional validators once ten Qualified Sunrise Periods have been completed under the New gTLD Program.

Thanks and cheers

Mary

...

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+1 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 Beckham, Brian Sent: Tuesday, April 11, 2017 11:14 AM To: George Kirikos; Jon Nevett 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, If your point is that some actors game a system I think that ground is well worn by now. You suggested in another email that we ought to do away with sunrises. Given the many views expressed on this list rejecting that idea (noting also the possibility to challenge the trademark registration, or its recordal in the TMCH (www.trademark-clearinghouse.com/dispute)), it is not clear what else can constructively be added to the discussion at this point. Perhaps in advance of our call tomorrow, our co-chairs wish to weigh in? Regards, Brian -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 4:30 PM To: Jon Nevett 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, here's an even better example, Flowers.baby: https://whois.domaintools.com/flowers.baby Creation Date: 2016-11-30T14:31:05Z According to the schedule at: https://www.safenames.net/nTLD/NewGtldsByGenericGroup/baby.aspx The Sunrise was from October 3, 2016 to December 2, 2016, so that clearly falls in the appropriate time frame. Land rush wasn't until December 5, 2016. General availability starts tomorrow (April 12, 2017). Operated by Neustar (non-Donuts). Also, Flowers.news is registered to you 1-800-Flowers.com: https://whois.domaintools.com/flowers.news with a creation date 2015-07-06T08:21:46Z that happens to be the same as that of Google.news: https://whois.domaintools.com/google.news (2015-07-06T08:21:49Z) give or take a few seconds. (.news does share the same backend as Donuts, I believe, but is run by Rightside). I won't waste my DomainTools.com credits to check the WHOIS history, though. I think the point's been made. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Apr 11, 2017 at 9:59 AM, George Kirikos <icann@leap.com> wrote:

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flow ers.miami&date=2015-10-02&origin=permalink

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote:

...

So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote:

...

How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote:

...

George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

...

On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote:

Hello,

On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote:

...

That one is not a smoking gun. It is a legitimate registration by a legitimate entity.

So, let me get this straight. Are you saying that if my company went out and registered a TM in some obscure jurisdiction like Tunisia, for the brand MATH, in the goods and services of "math education", used that mark in the TMCH to register MATH.TLD domains ahead of every other competitor in the math industry during sunrise, and then redirected the resulting domains to Math.com, that would be a "legitimate registration by a legitimate entity"?

I think most people would say "George, you gamed the system." and rightly so.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

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Dear All: During tomorrow’s call, we plan to cover this issues specifically. 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, 8:49 AM, "gnso-rpm-wg-bounces@icann.org on behalf of Michael Graham (ELCA)" <gnso-rpm-wg-bounces@icann.org on behalf of migraham@expedia.com> wrote: +1 -- I think we could use some direction from the co-chairs whether this discussion furthers our chartered tasks and where it should fall in the work plan. It does, however, sound like ground that has been well-covered. Michael R. -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Tuesday, April 11, 2017 8:37 AM To: Beckham, Brian <brian.beckham@wipo.int>; George Kirikos <icann@leap.com>; Jon Nevett <jon@donuts.co> 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 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://na01.safelinks.protection.outlook.com/?url=www.kilpatricktownsend.co... -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Beckham, Brian Sent: Tuesday, April 11, 2017 11:14 AM To: George Kirikos; Jon Nevett 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, If your point is that some actors game a system I think that ground is well worn by now. You suggested in another email that we ought to do away with sunrises. Given the many views expressed on this list rejecting that idea (noting also the possibility to challenge the trademark registration, or its recordal in the TMCH (https://na01.safelinks.protection.outlook.com/?url=www.trademark-clearinghou...)), it is not clear what else can constructively be added to the discussion at this point. Perhaps in advance of our call tomorrow, our co-chairs wish to weigh in? Regards, Brian -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 4:30 PM To: Jon Nevett 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, here's an even better example, Flowers.baby: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... Creation Date: 2016-11-30T14:31:05Z According to the schedule at: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.safenam... The Sunrise was from October 3, 2016 to December 2, 2016, so that clearly falls in the appropriate time frame. Land rush wasn't until December 5, 2016. General availability starts tomorrow (April 12, 2017). Operated by Neustar (non-Donuts). Also, Flowers.news is registered to you 1-800-Flowers.com: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... with a creation date 2015-07-06T08:21:46Z that happens to be the same as that of Google.news: https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... (2015-07-06T08:21:49Z) give or take a few seconds. (.news does share the same backend as Donuts, I believe, but is run by Rightside). I won't waste my DomainTools.com credits to check the WHOIS history, though. I think the point's been made. Sincerely, George Kirikos 416-588-0269 https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com... On Tue, Apr 11, 2017 at 9:59 AM, George Kirikos <icann@leap.com> wrote: > Since Donuts is calling into question the Flowers.delivery example > (and there are other TLDs operated by Donuts where Flowers.TLD is > registered by 1-800-Flowers.com), let's pick a registry not operated > by Donuts, namely .miami (operated by Minds+Machines). > > Timeline of Launch: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcomlaude.co... > > Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date > Sunrise (not first-come, first served) **(implies all domains got > created after sunrise, but before launch of General Availability) > General Availability: 02-Oct-15 (16:00 UTC) > > Please note that there will be no Landrush phase for this TLD. > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2015-09-28T17:38:01Z > > (registrant: 1-800-FLOWERS.COM, INC.) > > NB: Notice that the date above is *before* General Availability, > implying it was registered in Sunrise. > > Oldest WHOIS history at DomainTools is a few days later: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fresearch.do... > ers.miami&date=2015-10-02&origin=permalink > > Domain ID: 1095074-MMd1 > Domain Name: flowers.miami > WHOIS Server: whois-dub.mm-registry.com Updated Date: > 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry > Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC > Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain > Status: clientTransferProhibited > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Ficann.org%2... > > Registrant ID: 34106-Minds > Registrant Name: Domain Administrator > Registrant Organization: 1-800-FLOWERS.COM, INC. > Registrant Street: One Old Country Road, Suite 500 Registrant City: > Carle Place Registrant State/Province: NY Registrant Postal Code: > 11514 Registrant Country: US Registrant Phone: +1.5162376000 > Registrant Phone Ext: > Registrant Fax: +1.5162376101 > Registrant Fax Ext: > Registrant Email: domainadmin@1800flowers.com > > If we compare the creation date of flowers.miami, it's the same (give > or take a few seconds) as Google.miami: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2015-09-28T17:38:25Z > > or Yahoo.miami: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2015-09-28T17:38:28Z > > or Adsense.miami: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2015-09-28T17:37:57Z > > All of which were presumably registered via Sunrise. > > I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd > quickly use up all my DomainTools limits! Plus, I have a life.) > > But, 1-800-Flowers.com also owns Flowers.Yokohama > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > and that's not operated by Donuts or by Minds+Machines (it's by GMO > Registry). Its creation date is 2014-08-05T06:40:00.0Z > > whereas the landrush was a day later: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fie.godaddy.... > > "From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, > customers can purchase .yokohama domain names at a premium price." > > Flowers.yokohama has the same creation date/time (to the exact second) as: > > Google.Yokohama: > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2014-08-05T06:40:00.0Z > > or Yahoo.Yokohama > > https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domai... > > Creation Date: 2014-08-05T06:40:00.0Z > > and these would clearly be sunrise registrations. > > Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in > the TMCH? If so, is it sunrise eligible? If so, are they using it to > get Flowers.TLD before anyone else can, in sunrise periods? > > If ICANN wants to subsidize higher limits for a DomainTools account, > and give me a per diem, I can find more examples, if the above isn't > compelling enough evidence. > > Or, we can open up the TMCH and see what's hiding there. > > Sincerely, > > George Kirikos > 416-588-0269 > https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com... > > > > > On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: >> So, if Flowers.delivery *wasn't* a Sunrise registration, then if we >> examined the TMCH we wouldn't find any recordals (past or present) >> for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible?? >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com... >> >> >> On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: >>> How was it created before EAP began, then? Yahoo.delivery and >>> USPS.delivery weren't sunrise either?? (same creation dates/times, >>> give or take a few seconds) >>> >>> Sincerely, >>> >>> George Kirikos >>> 416-588-0269 >>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com... >>> >>> >>> >>> On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: >>>> George: >>>> >>>> All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points. >>>> >>>> Jon >>>> >>>> >>>> >>>>> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: >>>>> >>>>> Hello, >>>>> >>>>> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >>>>>> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. >>>>> >>>>> So, let me get this straight. Are you saying that if my company >>>>> went out and registered a TM in some obscure jurisdiction like >>>>> Tunisia, for the brand MATH, in the goods and services of "math >>>>> education", used that mark in the TMCH to register MATH.TLD >>>>> domains ahead of every other competitor in the math industry >>>>> during sunrise, and then redirected the resulting domains to >>>>> Math.com, that would be a "legitimate registration by a legitimate entity"? >>>>> >>>>> I think most people would say "George, you gamed the system." and rightly so. >>>>> >>>>> Sincerely, >>>>> >>>>> George Kirikos >>>>> 416-588-0269 >>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com... >>>> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or... 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George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions. Michael R. -----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines). Timeline of Launch: https://comlaude.com/news/new-gtld-updates-miami-launch-schedule Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC) Please note that there will be no Landrush phase for this TLD. https://whois.domaintools.com/flowers.miami Creation Date: 2015-09-28T17:38:01Z (registrant: 1-800-FLOWERS.COM, INC.) NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise. Oldest WHOIS history at DomainTools is a few days later: https://research.domaintools.com/research/whois-history/search/?q=flowers.mi... Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami: https://whois.domaintools.com/google.miami Creation Date: 2015-09-28T17:38:25Z or Yahoo.miami: https://whois.domaintools.com/yahoo.miami Creation Date: 2015-09-28T17:38:28Z or Adsense.miami: https://whois.domaintools.com/adsense.miami Creation Date: 2015-09-28T17:37:57Z All of which were presumably registered via Sunrise. I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.) But, 1-800-Flowers.com also owns Flowers.Yokohama https://whois.domaintools.com/flowers.yokohama and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z whereas the landrush was a day later: https://ie.godaddy.com/help/about-yokohama-domain-names-11994 "From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price." Flowers.yokohama has the same creation date/time (to the exact second) as: Google.Yokohama: https://whois.domaintools.com/google.yokohama Creation Date: 2014-08-05T06:40:00.0Z or Yahoo.Yokohama https://whois.domaintools.com/yahoo.yokohama Creation Date: 2014-08-05T06:40:00.0Z and these would clearly be sunrise registrations. Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods? If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence. Or, we can open up the TMCH and see what's hiding there. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote:

So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote:

...

How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote:

...

George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

...

On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote:

Hello,

On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote:

...

That one is not a smoking gun. It is a legitimate registration by a legitimate entity.

So, let me get this straight. Are you saying that if my company went out and registered a TM in some obscure jurisdiction like Tunisia, for the brand MATH, in the goods and services of "math education", used that mark in the TMCH to register MATH.TLD domains ahead of every other competitor in the math industry during sunrise, and then redirected the resulting domains to Math.com, that would be a "legitimate registration by a legitimate entity"?

I think most people would say "George, you gamed the system." and rightly so.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

Rebecca, The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc. Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.

On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

The over 90% abandonment rate in response to matches shown in the audit strongly suggests an effect on non-trademark owners. "Some circumstantial evidence is very strong, as when you find a trout in the milk."

That was also a pretty sharp turn from "there's no evidence" to "you have all the evidence you need." Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) <migraham@expedia.com> wrote:

...

George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.

Michael R.

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flowers.mi...

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

...

On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote:

Hello,

> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: > That one is not a smoking gun. It is a legitimate registration by a legitimate entity.

So, let me get this straight. Are you saying that if my company went out and registered a TM in some obscure jurisdiction like Tunisia, for the brand MATH, in the goods and services of "math education", used that mark in the TMCH to register MATH.TLD domains ahead of every other competitor in the math industry during sunrise, and then redirected the resulting domains to Math.com, that would be a "legitimate registration by a legitimate entity"?

I think most people would say "George, you gamed the system." and rightly so.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

---

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---

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Identifying the shortcomings of data is a far cry from determining the significance of that data. I look forward to the presentation of proposals as called for by Phil. Once our investigations are defined, we can identify and then seek the data necessary. However, as the CCT RT has noted repeatedly: at this time neither ICANN nor its stakeholders nor service providers maintain or can provide much of the desired or necessary data. Michael R. -----Original Message----- From: Rebecca Tushnet [mailto:Rebecca.Tushnet@law.georgetown.edu] Sent: Tuesday, April 11, 2017 9:44 AM To: Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> Cc: Michael Graham (ELCA) <migraham@expedia.com>; gnso-rpm-wg@icann.org; Jon Nevett <jon@donuts.co> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today From the audit report, page 8: We investigated the data for the presence of bulk downloads by searching for simultaneous downloads of more than one TMDB record by a given registrar. The vast majority of registrars making downloads of multiple TMCH trademark strings had average download sizes of fewer than five strings, with the exception of downloads by two registrars, whose average download size was larger than 20 TMCH records per download. However, we cannot be certain whether the large download sizes by these two registrars were associated with actual domain registration attempts or not. For analyses that rely on a count of registration attempts, we conduct the analysis both including and excluding these registrars. As is demonstrated in Section V, both approaches yield relatively similar results. Rebecca Tushnet Georgetown Law 703 593 6759 On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

Rebecca,

The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.

Kiran

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

The over 90% abandonment rate in response to matches shown in the audit strongly suggests an effect on non-trademark owners. "Some circumstantial evidence is very strong, as when you find a trout in the milk."

That was also a pretty sharp turn from "there's no evidence" to "you have all the evidence you need." Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) <migraham@expedia.com> wrote:

...

George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.

Michael R.

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=fl owers.miami&date=2015-10-02&origin=permalink

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: George:

All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points.

Jon

> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: > > Hello, > >> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. > > So, let me get this straight. Are you saying that if my company > went out and registered a TM in some obscure jurisdiction like > Tunisia, for the brand MATH, in the goods and services of "math > education", used that mark in the TMCH to register MATH.TLD > domains ahead of every other competitor in the math industry > during sunrise, and then redirected the resulting domains to > Math.com, that would be a "legitimate registration by a legitimate entity"? > > I think most people would say "George, you gamed the system." and rightly so. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/

---

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---

gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

You'll note, Rebecca, that I didn't reference bulk downloads by registrars. That is a different technical function than what I mention. Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.

On Apr 11, 2017, at 9:44 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

From the audit report, page 8: We investigated the data for the presence of bulk downloads by searching for simultaneous downloads of more than one TMDB record by a given registrar. The vast majority of registrars making downloads of multiple TMCH trademark strings had average download sizes of fewer than five strings, with the exception of downloads by two registrars, whose average download size was larger than 20 TMCH records per download. However, we cannot be certain whether the large download sizes by these two registrars were associated with actual domain registration attempts or not. For analyses that rely on a count of registration attempts, we conduct the analysis both including and excluding these registrars. As is demonstrated in Section V, both approaches yield relatively similar results.

Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

...

Rebecca,

The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.

Kiran

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

The over 90% abandonment rate in response to matches shown in the audit strongly suggests an effect on non-trademark owners. "Some circumstantial evidence is very strong, as when you find a trout in the milk."

That was also a pretty sharp turn from "there's no evidence" to "you have all the evidence you need." Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) <migraham@expedia.com> wrote:

...

George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.

Michael R.

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flowers.mi...

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: So, if Flowers.delivery *wasn't* a Sunrise registration, then if we examined the TMCH we wouldn't find any recordals (past or present) for "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

...

On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: How was it created before EAP began, then? Yahoo.delivery and USPS.delivery weren't sunrise either?? (same creation dates/times, give or take a few seconds)

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

> On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: > George: > > All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points. > > Jon > > > >> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: >> >> Hello, >> >>> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >>> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. >> >> So, let me get this straight. Are you saying that if my company >> went out and registered a TM in some obscure jurisdiction like >> Tunisia, for the brand MATH, in the goods and services of "math >> education", used that mark in the TMCH to register MATH.TLD domains >> ahead of every other competitor in the math industry during >> sunrise, and then redirected the resulting domains to Math.com, >> that would be a "legitimate registration by a legitimate entity"? >> >> I think most people would say "George, you gamed the system." and rightly so. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >

---

gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

---

gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

That is certainly not what I'm saying (as usual, you're twisting and manipulating). All I'm saying is that the numbers are not a reliable indicator of, as you stated, "an effect on non-trademark owners" that would justify the overhaul of the system, and breach of confidentiality that you are advocating. K Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.

On Apr 11, 2017, at 10:20 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

If you think that those over 90% of abandonments don't represent true abandonments but are mostly just tests/checkups, how does that affect our estimate of how much time and money people are spending per cybersquatter deterred, since by hypothesis every test/checkup lookup is also not a cybersquatter deterred? If you really believed that, query whether we shouldn't just rely on the URS. Also, if they are mostly just tests/checkups, why are the top ten downloads dictionary terms not strongly associated with brands in any category? That seems a fairly unusual pattern to emerge by accident. Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 1:02 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

...

You'll note, Rebecca, that I didn't reference bulk downloads by registrars. That is a different technical function than what I mention.

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 9:44 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

From the audit report, page 8: We investigated the data for the presence of bulk downloads by searching for simultaneous downloads of more than one TMDB record by a given registrar. The vast majority of registrars making downloads of multiple TMCH trademark strings had average download sizes of fewer than five strings, with the exception of downloads by two registrars, whose average download size was larger than 20 TMCH records per download. However, we cannot be certain whether the large download sizes by these two registrars were associated with actual domain registration attempts or not. For analyses that rely on a count of registration attempts, we conduct the analysis both including and excluding these registrars. As is demonstrated in Section V, both approaches yield relatively similar results.

Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

...

Rebecca,

The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.

Kiran

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

The over 90% abandonment rate in response to matches shown in the audit strongly suggests an effect on non-trademark owners. "Some circumstantial evidence is very strong, as when you find a trout in the milk."

That was also a pretty sharp turn from "there's no evidence" to "you have all the evidence you need." Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) <migraham@expedia.com> wrote:

...

George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.

Michael R.

-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, April 11, 2017 7:00 AM To: Jon Nevett <jon@donuts.co> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).

Timeline of Launch:

https://comlaude.com/news/new-gtld-updates-miami-launch-schedule

Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)

Please note that there will be no Landrush phase for this TLD.

https://whois.domaintools.com/flowers.miami

Creation Date: 2015-09-28T17:38:01Z

(registrant: 1-800-FLOWERS.COM, INC.)

NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.

Oldest WHOIS history at DomainTools is a few days later:

https://research.domaintools.com/research/whois-history/search/?q=flowers.mi...

Domain ID: 1095074-MMd1 Domain Name: flowers.miami WHOIS Server: whois-dub.mm-registry.com Updated Date: 2015-10-01T14:07:07Z Creation Date: 2015-09-28T17:38:01Z Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited

Registrant ID: 34106-Minds Registrant Name: Domain Administrator Registrant Organization: 1-800-FLOWERS.COM, INC. Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: Registrant Fax: +1.5162376101 Registrant Fax Ext: Registrant Email: domainadmin@1800flowers.com

If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:

https://whois.domaintools.com/google.miami

Creation Date: 2015-09-28T17:38:25Z

or Yahoo.miami:

https://whois.domaintools.com/yahoo.miami

Creation Date: 2015-09-28T17:38:28Z

or Adsense.miami:

https://whois.domaintools.com/adsense.miami

Creation Date: 2015-09-28T17:37:57Z

All of which were presumably registered via Sunrise.

I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)

But, 1-800-Flowers.com also owns Flowers.Yokohama

https://whois.domaintools.com/flowers.yokohama

and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z

whereas the landrush was a day later:

https://ie.godaddy.com/help/about-yokohama-domain-names-11994

"From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."

Flowers.yokohama has the same creation date/time (to the exact second) as:

Google.Yokohama:

https://whois.domaintools.com/google.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

or Yahoo.Yokohama

https://whois.domaintools.com/yahoo.yokohama

Creation Date: 2014-08-05T06:40:00.0Z

and these would clearly be sunrise registrations.

Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?

If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.

Or, we can open up the TMCH and see what's hiding there.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

> On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: > So, if Flowers.delivery *wasn't* a Sunrise registration, then if we > examined the TMCH we wouldn't find any recordals (past or present) for > "FLOWERS" by 1-800-Flowers.com that were sunrise eligible?? > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > >> On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: >> How was it created before EAP began, then? Yahoo.delivery and >> USPS.delivery weren't sunrise either?? (same creation dates/times, >> give or take a few seconds) >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> >>> On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: >>> George: >>> >>> All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points. >>> >>> Jon >>> >>> >>> >>>> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: >>>> >>>> Hello, >>>> >>>>> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >>>>> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. >>>> >>>> So, let me get this straight. Are you saying that if my company >>>> went out and registered a TM in some obscure jurisdiction like >>>> Tunisia, for the brand MATH, in the goods and services of "math >>>> education", used that mark in the TMCH to register MATH.TLD domains >>>> ahead of every other competitor in the math industry during >>>> sunrise, and then redirected the resulting domains to Math.com, >>>> that would be a "legitimate registration by a legitimate entity"? >>>> >>>> I think most people would say "George, you gamed the system." and rightly so. >>>> >>>> Sincerely, >>>> >>>> George Kirikos >>>> 416-588-0269 >>>> http://www.leap.com/ >>> _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Kathy, I am disturbed that, AS CO-CHAIR, you are fine with accusations of wrongdoing being slung toward brand owners, but somehow pointing out that a legitimate argument is being twisted and manipulated is not polite. I believe that pointing out the repeated mischaracterization of my position is my right in this process. Nothing I said was directed at anyone personally, and is not a violation of the expected standards of behavior. Your suggestion otherwise should be corrected and I deserve an apology. Kiran Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m) Sent from my mobile, please excuse any typos.

On Apr 12, 2017, at 8:34 AM, Kathy Kleiman <kathy@kathykleiman.com> wrote:

Hi Kiran,

Could we kindly avoid allegations of "twisting and manipulating" as these are not polite terms, and Professor Tushnet certainly deserves politeness.

A 94% turnback rate, with bulk access, is certainly Far Higher than anything we expected in designing this system, as as Phil Corwin points out, "would seem to indicate we should explore practical means of reducing any deterrent effect on legitimate registrations."

I am sure you are receptive to fixing legitimate problems, as am I. Looking forward to this discussion in TM Claims. Certainly a problem seems to have been identified...

Best, Kathy

...

On 4/11/2017 1:25 PM, Kiran Malancharuvil via gnso-rpm-wg wrote: That is certainly not what I'm saying (as usual, you're twisting and manipulating). All I'm saying is that the numbers are not a reliable indicator of, as you stated, "an effect on non-trademark owners" that would justify the overhaul of the system, and breach of confidentiality that you are advocating.

K

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 10:20 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

If you think that those over 90% of abandonments don't represent true abandonments but are mostly just tests/checkups, how does that affect our estimate of how much time and money people are spending per cybersquatter deterred, since by hypothesis every test/checkup lookup is also not a cybersquatter deterred? If you really believed that, query whether we shouldn't just rely on the URS. Also, if they are mostly just tests/checkups, why are the top ten downloads dictionary terms not strongly associated with brands in any category? That seems a fairly unusual pattern to emerge by accident. Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 1:02 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

...

You'll note, Rebecca, that I didn't reference bulk downloads by registrars. That is a different technical function than what I mention.

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

...

On Apr 11, 2017, at 9:44 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote:

From the audit report, page 8: We investigated the data for the presence of bulk downloads by searching for simultaneous downloads of more than one TMDB record by a given registrar. The vast majority of registrars making downloads of multiple TMCH trademark strings had average download sizes of fewer than five strings, with the exception of downloads by two registrars, whose average download size was larger than 20 TMCH records per download. However, we cannot be certain whether the large download sizes by these two registrars were associated with actual domain registration attempts or not. For analyses that rely on a count of registration attempts, we conduct the analysis both including and excluding these registrars. As is demonstrated in Section V, both approaches yield relatively similar results.

Rebecca Tushnet Georgetown Law 703 593 6759

On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil <Kiran.Malancharuvil@markmonitor.com> wrote:

...

Rebecca,

The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.

Kiran

Kiran Malancharuvil Policy Counselor MarkMonitor 415-419-9138 (m)

Sent from my mobile, please excuse any typos.

> On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet@law.georgetown.edu> wrote: > > The over 90% abandonment rate in response to matches shown in the > audit strongly suggests an effect on non-trademark owners. "Some > circumstantial evidence is very strong, as when you find a trout in > the milk." > > That was also a pretty sharp turn from "there's no evidence" to "you > have all the evidence you need." > Rebecca Tushnet > Georgetown Law > 703 593 6759 > > > On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA) > <migraham@expedia.com> wrote: >> George: The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations. As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions. >> >> Michael R. >> >> -----Original Message----- >> From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of George Kirikos >> Sent: Tuesday, April 11, 2017 7:00 AM >> To: Jon Nevett <jon@donuts.co> >> Cc: gnso-rpm-wg@icann.org >> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today >> >> Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines). >> >> Timeline of Launch: >> >> https://comlaude.com/news/new-gtld-updates-miami-launch-schedule >> >> Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC) >> >> Please note that there will be no Landrush phase for this TLD. >> >> https://whois.domaintools.com/flowers.miami >> >> Creation Date: 2015-09-28T17:38:01Z >> >> (registrant: 1-800-FLOWERS.COM, INC.) >> >> NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise. >> >> Oldest WHOIS history at DomainTools is a few days later: >> >> https://research.domaintools.com/research/whois-history/search/?q=flowers.mi... >> >> Domain ID: 1095074-MMd1 >> Domain Name: flowers.miami >> WHOIS Server: whois-dub.mm-registry.com >> Updated Date: 2015-10-01T14:07:07Z >> Creation Date: 2015-09-28T17:38:01Z >> Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited >> >> Registrant ID: 34106-Minds >> Registrant Name: Domain Administrator >> Registrant Organization: 1-800-FLOWERS.COM, INC. >> Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext: >> Registrant Fax: +1.5162376101 >> Registrant Fax Ext: >> Registrant Email: domainadmin@1800flowers.com >> >> If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami: >> >> https://whois.domaintools.com/google.miami >> >> Creation Date: 2015-09-28T17:38:25Z >> >> or Yahoo.miami: >> >> https://whois.domaintools.com/yahoo.miami >> >> Creation Date: 2015-09-28T17:38:28Z >> >> or Adsense.miami: >> >> https://whois.domaintools.com/adsense.miami >> >> Creation Date: 2015-09-28T17:37:57Z >> >> All of which were presumably registered via Sunrise. >> >> I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.) >> >> But, 1-800-Flowers.com also owns Flowers.Yokohama >> >> https://whois.domaintools.com/flowers.yokohama >> >> and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is 2014-08-05T06:40:00.0Z >> >> whereas the landrush was a day later: >> >> https://ie.godaddy.com/help/about-yokohama-domain-names-11994 >> >> "From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price." >> >> Flowers.yokohama has the same creation date/time (to the exact second) as: >> >> Google.Yokohama: >> >> https://whois.domaintools.com/google.yokohama >> >> Creation Date: 2014-08-05T06:40:00.0Z >> >> or Yahoo.Yokohama >> >> https://whois.domaintools.com/yahoo.yokohama >> >> Creation Date: 2014-08-05T06:40:00.0Z >> >> and these would clearly be sunrise registrations. >> >> Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods? >> >> If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence. >> >> Or, we can open up the TMCH and see what's hiding there. >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> >> >>> On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann@leap.com> wrote: >>> So, if Flowers.delivery *wasn't* a Sunrise registration, then if we >>> examined the TMCH we wouldn't find any recordals (past or present) for >>> "FLOWERS" by 1-800-Flowers.com that were sunrise eligible?? >>> >>> Sincerely, >>> >>> George Kirikos >>> 416-588-0269 >>> http://www.leap.com/ >>> >>> >>>> On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann@leap.com> wrote: >>>> How was it created before EAP began, then? Yahoo.delivery and >>>> USPS.delivery weren't sunrise either?? (same creation dates/times, >>>> give or take a few seconds) >>>> >>>> Sincerely, >>>> >>>> George Kirikos >>>> 416-588-0269 >>>> http://www.leap.com/ >>>> >>>> >>>> >>>>> On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon@donuts.co> wrote: >>>>> George: >>>>> >>>>> All I'm saying is that flowers.delivery wasn't a sunrise registration. I'm not commenting on your other points. >>>>> >>>>> Jon >>>>> >>>>> >>>>> >>>>>> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann@leap.com> wrote: >>>>>> >>>>>> Hello, >>>>>> >>>>>>> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon@donuts.co> wrote: >>>>>>> That one is not a smoking gun. It is a legitimate registration by a legitimate entity. >>>>>> So, let me get this straight. Are you saying that if my company >>>>>> went out and registered a TM in some obscure jurisdiction like >>>>>> Tunisia, for the brand MATH, in the goods and services of "math >>>>>> education", used that mark in the TMCH to register MATH.TLD domains >>>>>> ahead of every other competitor in the math industry during >>>>>> sunrise, and then redirected the resulting domains to Math.com, >>>>>> that would be a "legitimate registration by a legitimate entity"? >>>>>> >>>>>> I think most people would say "George, you gamed the system." and rightly so. >>>>>> >>>>>> Sincerely, >>>>>> >>>>>> George Kirikos >>>>>> 416-588-0269 >>>>>> http://www.leap.com/ >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg >> _______________________________________________ >> gnso-rpm-wg mailing list >> gnso-rpm-wg@icann.org >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg > _______________________________________________ > gnso-rpm-wg mailing list > gnso-rpm-wg@icann.org > https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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