In regard to registrant representations and warranties, they are contained in Section 2 of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en : 2. Your Representations. By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. (Emphasis added) It could be argued that there is some tension between the “to your knowledge” phrase, which does not seem to require any deep inquiry, and the “it is your responsibility” phrase, which arguably requires more. We can certainly discuss this and every other word in the UDRP when we get to it next year. As a practical matter, I would venture that most domain registrants – the vast majority of whom have no infringing intent – simply accept the UDRP as part of entering into a business relationship with a registrar with about the same degree of care and thought that most of us give to checking the “I Agree” to the TOS box to download software or an App. That is, it’s automatic and with little thought, especially since one can’t negotiate the terms and it’s just something you must accept to complete the transaction. Since most domain registrants know very little about trademark law and don’t do a TM search before registering a domain, would “the notion of ongoing Claims Notices” provide them with more information (that their prospective domain name is an exact match in the TMCH database) that would be useful in conforming their anticipated registration to their representation? Perhaps. We can certainly discuss that as we review the Claims Notice, but should also consider its potential impact on registration completion (abandonment rate) and ancillary costs. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Beckham, Brian Sent: Tuesday, April 18, 2017 10:52 AM To: policy@paulmcgrady.com; Jon Nevett; J. Scott Evans Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH Thanks Paul and Jon, On the 90-day Claims Notices: if registrars designed their systems (or opted not to) so as to effectively dilute the relevance of Claims Notices (insofar as this follows from a lesser number of registrars making certain TLDs available at the launch phase) perhaps this is something the WG should consider looking at. Jon -- from your experience on the registrar and now registry side, would you see any scope for streamlining/centralizing this function to achieve efficiency gains on the registrar and/or registry side (i.e., giving them tools that would minimize or eliminate their non-participation)? I raise this insofar as it relates to the emerging discussion on registrant representations and warranties; namely, it seems fair that a would-be registrant may wish to know more about their registration if they are going to represent refraining from certain actions related thereto. This may also support the notion of ongoing Claims Notices (to dovetail on the notice provided by the TMCH but only to brand owners). Aside from UDRP cases themselves where panels will assess the case merits according to the policy criteria, unfortunately from time-to-time we see allegations of a clear breach of registrant representations where despite the contractual ability to do so, contracted parties have not been inclined to take action. Brian From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of policy@paulmcgrady.com<mailto:policy@paulmcgrady.com> Sent: Monday, April 17, 2017 5:28 PM To: Jon Nevett; J. Scott Evans Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH Thanks Jon. Regarding 1: I'm sure that J. Scott wasn't insinuating anything. There is a lot of noise out in blogland regarding whether or not the new gTLDs are a success, failure, or too early to tell (I'm of the too early to tell crowd myself). Usually when an industry asks for a reduction in fees it is because of financial distress. I see from your email that you believe it is just a "we paid too much so we want it back." Good to know. Regarding 2: I think we have all gone around and around on this in various meetings. Let's not conflate cooperation in enforcing the registrant's non-infringement requirements with the registry's obligation to make sure those non-infringement requirements end up in the registrant's agreement. I don't think anyone is saying registries are passing those through. The comment has to do with help from the registries to deal with situations when registrant's violate those non-infringement requirements. Best, Paul -------- Original Message -------- Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH From: Jon Nevett <jon@donuts.email<mailto:jon@donuts.email>> Date: Sat, April 15, 2017 7:09 am To: "J. Scott Evans" <jsevans@adobe.com<mailto:jsevans@adobe.com>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> J. Scott: To correct the record on a couple of your posts: 1. New TLD registries asked for a relatively small refund of the almost $100M in excess application fees we paid to ICANN in the form of a fee reduction. That doesn't mean they are a "disaster" or "unsuccessful" or whatever else you are insinuating. 2. I haven't seen any evidence that New TLD registries are generally in violation of their registry agreements with regard to the provision about registrant misuse of domain names. If you have evidence of such, let's work together with ICANN compliance to go after these registries. Those of us spending a great deal on compliance don't like to see others skirt the rules. Could we deal with the legitimate concerns of the current system without leveling attacks and unfair insinuations against other groups? It seems like registries on this list are ok with the current use of the TMCH and the sunrise process. We want to address the small subset of sunrise gaming where folks register dictionary-word trademarks for the sole purpose of registering during sunrises in related TLDs. One solution to this problem is to give registries better access to the clearinghouse to deal with these issues, but with strict guidelines of how that information could be used. I also have heard many concerns about the 90 day claims requirements, as many registrars declined to build the infrastructure to process such domain names during the first 90 days. Thanks. jon

On Apr 14, 2017, at 5:56 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:

I think you could say that about 99% of the new gTLDs. Didn’t they recently ask for a reduction in fees?

J. Scott Evans 408.536.5336 (tel) 345 Park Avenue, Mail Stop W11-544 Director, Associate General Counsel 408.709.6162 (cell) San Jose, CA, 95110, USA Adobe. Make It an Experience. jsevans@adobe.com<mailto:jsevans@adobe.com> www.adobe.com<http://www.adobe.com>

On 4/14/17, 2:54 PM, "gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> on behalf of icann@leap.com<mailto:icann@leap.com>> wrote:

Just to correct my prior email, .pro technically wasn't a "sponsored" TLD.

But, the other ones that were sponsored weren't very successful (.post, .aero, .asia, .jobs. mobi, .xxx etc.).

Sincerely,

George

On Fri, Apr 14, 2017 at 4:47 PM, George Kirikos <icann@leap.com<mailto:icann@leap.com>> wrote:

...

Hi J. Scott,

On Fri, Apr 14, 2017 at 4:22 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> wrote:

...

My suggestion would be that either we have sponsored TLDs with up front verification or we have a challenge system whereby the challenging party that wants to us the string for a non-infringing purpose could obtain the domain name; provided, however that their use was subject to the requirement that they stick to the stated non-infringing purpose. Failure to do so is a breach of the TOS and the Registry would takedown the domain name if it received a valid complaint. Similar to DMCA.

We're trying to achieve the same result, which I see as promising.

With respect, it's unfortunate that sponsored TLDs turned out be a disaster. Either they were outright gamed (e.g. people renting out their ".pro" qualifications/credentials/whatever), or domains were mopped up by insiders (e.g. .travel), etc.

https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fdomainnamewi...

With a "challenge" system, what if there were multiple challengers? Who gets the domain name? What if the sunrise registrant wants the domain name more than the "challenger(s)" does(do)? Who gets it?

What I proposed (auction system in landrush, which is how landrushes tend to operate anyhow; i.e. just eliminate the sunrise and go straight to landrush) is entire neutral and "clean." The answers to the above questions are simple: money.

No need to reinvent the wheel here. Money has always been the way to solve these allocation issues for scarce resources. Once you start interfering in that (to suggest that someone is "more deserving" of the asset), it invites the gaming we're seeing.

It'd be interesting to know the stats on average domains registered in sunrise, by the way, if anyone has those handy. i.e. we know that on average 130 per TLD are registered in sunrise. How many more are being registered in landrush, on average?

Sincerely,

George Kirikos 416-588-0269 https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com...

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