A Brave New World Without Sunrises or the TMCH
Hi folks, (changing the subject accordingly) On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming.
These numbers stand for the proposition that the sunrise period should be entirely eliminated, given that folks concede it "is a very small number", and thus is not conferring many benefits to those who register them defensively, since they're not utilizing the procedure. And the gaming that does exist is amplified, since it means that a higher percentage of the sunrise registrations are gamed. It could be that 30%, or even 50% of sunrise registrations are gamed, given the various blog posts and examples provided to this mailing list already (and how many others might exist "under the radar", that some folks are trying to keep hidden due to the lack of transparency of the TMCH). Consider a "thought experiment" as to what would happen if Sunrise registrations and the TMCH were eliminated. Those 130 registrations would shift to either landrush or to general availability. For those who are "gaming" the sunrise, they'd now be on an equal footing as everyone else. For those legitimate TM holders, they can either register in landrush (or general availability), *or* they have curative rights protection mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* domains which conflict with their TM rights are registered by someone else and misused. I could even support a "hybrid" (horse trading, as Phil called it yesterday) model, where landrush imposed **additional burdens** on registrants, e.g. paying costs if they lose a UDRP), but then that extra burden is eliminated during general availability (as it is today). This way, TM holders and legitimate end users who don't have trademarks but have non-conflicting uses, etc. are on equal footing during a landrush. I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.). Suppose that of the 130 sunrise registrations, half of them got registered by legitimate TM owners in landrush. Of the 65 that were registered by someone else, how many of those would actually be cases of cybersquatting? I would suggest it's a small number, given the overall stats of UDRPs relative to registrations. Even if it was a massive 2% (actual percentage is much, much lower), that might mean 1 extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might mean an extra 250 UDRPs per year. That's a relatively negligible amount. If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) is $5,000 or so, that's $1.25 million/yr. TMCH revenues, by contrast, are on the order of $5 million/yr for Deloitte. And perhaps another $5 million or more per year for all the TM agents, etc. filing on behalf of clients. Let's call it $10 million+ for TMCH-related fees on those using that system. Trading $10 million/yr in "preventive" costs for $1.25 million/yr in "enforcement" costs -- that's a no-brainer for TM holders. And if, as I argued above, if some of those UDRP enforcement costs are shifted to the losers (for landrush registrations), then the economics are even that much stronger for the elimination of the sunrise period (since that $1.25 million becomes even lower, due to cost recovery). And of course, a system that has no landrush definitely benefits ordinary registrants and prospective registrants who simply want a "good" name, or at least a fair chance at one, and don't want to see "THE" or "FLOWERS" or "HOTEL" or all of the other common words being grabbed in sunrise. Processes would be simplified for registry operators and registrars, if sunrises and TMCH were eliminated, which saves them money (which gets passed along as savings for consumers). TLDs would launch faster, too. The best second-level strings would be "spread around" more, which is probably a good thing (except to some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports). So, I hope folks will give serious consideration to what would happen if sunrise was completely eliminated. With a few small tweaks (as noted above), it could be much better than we have for most people (except for those exploiting the current system). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ P.S. I know I've not written much above about the TM Claims notice aspect of the TMCH, but those are obviously have a chilling effect, with a 96%+ abandonment rate of registrations. A 90 day claims notice, which determined cybersquatters are going to ignore anyway, simply confuses legitimate registrants. The "ongoing notifications service" aspect of the TMCH is available through other companies, e.g. DomainTools or other domain monitoring services. P.P.S. Some might argue that you can never collect $5K from registrants if they lose a UDRP. Shift some of that to the registrar, who can then police their own clients, a sort of "know your client" rule for those participating in landrushes. One can even envision a system of insurance, so that those who are involved in risky domain name registrations pay higher "insurance" (to indemnify their registrars) than less risky registrants who don't engage in cybersquatting. Or require a deposit at the start of the UDRP process (if one side doesn't post a deposit, they'd be in default).
I concur. There was some indication that the claims notice might be more helpful—registries are only required to provide claims notice for 90 days but the TMCH itself provides ongoing claims notices (for ongoing fees, to continue to justify its existence). I’m happy to allow that state of affairs to continue if the TMCH and its customers desire. /R Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 S: RegLevy2 Current UTC offset: -7
On 13 Apr 2017, at 11:59, George Kirikos <icann@leap.com> wrote:
Hi folks,
(changing the subject accordingly)
On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming.
These numbers stand for the proposition that the sunrise period should be entirely eliminated, given that folks concede it "is a very small number", and thus is not conferring many benefits to those who register them defensively, since they're not utilizing the procedure. And the gaming that does exist is amplified, since it means that a higher percentage of the sunrise registrations are gamed. It could be that 30%, or even 50% of sunrise registrations are gamed, given the various blog posts and examples provided to this mailing list already (and how many others might exist "under the radar", that some folks are trying to keep hidden due to the lack of transparency of the TMCH).
Consider a "thought experiment" as to what would happen if Sunrise registrations and the TMCH were eliminated. Those 130 registrations would shift to either landrush or to general availability.
For those who are "gaming" the sunrise, they'd now be on an equal footing as everyone else.
For those legitimate TM holders, they can either register in landrush (or general availability), *or* they have curative rights protection mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* domains which conflict with their TM rights are registered by someone else and misused.
I could even support a "hybrid" (horse trading, as Phil called it yesterday) model, where landrush imposed **additional burdens** on registrants, e.g. paying costs if they lose a UDRP), but then that extra burden is eliminated during general availability (as it is today). This way, TM holders and legitimate end users who don't have trademarks but have non-conflicting uses, etc. are on equal footing during a landrush.
I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.).
Suppose that of the 130 sunrise registrations, half of them got registered by legitimate TM owners in landrush. Of the 65 that were registered by someone else, how many of those would actually be cases of cybersquatting? I would suggest it's a small number, given the overall stats of UDRPs relative to registrations. Even if it was a massive 2% (actual percentage is much, much lower), that might mean 1 extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might mean an extra 250 UDRPs per year. That's a relatively negligible amount.
If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) is $5,000 or so, that's $1.25 million/yr.
TMCH revenues, by contrast, are on the order of $5 million/yr for Deloitte. And perhaps another $5 million or more per year for all the TM agents, etc. filing on behalf of clients. Let's call it $10 million+ for TMCH-related fees on those using that system.
Trading $10 million/yr in "preventive" costs for $1.25 million/yr in "enforcement" costs -- that's a no-brainer for TM holders.
And if, as I argued above, if some of those UDRP enforcement costs are shifted to the losers (for landrush registrations), then the economics are even that much stronger for the elimination of the sunrise period (since that $1.25 million becomes even lower, due to cost recovery).
And of course, a system that has no landrush definitely benefits ordinary registrants and prospective registrants who simply want a "good" name, or at least a fair chance at one, and don't want to see "THE" or "FLOWERS" or "HOTEL" or all of the other common words being grabbed in sunrise.
Processes would be simplified for registry operators and registrars, if sunrises and TMCH were eliminated, which saves them money (which gets passed along as savings for consumers). TLDs would launch faster, too. The best second-level strings would be "spread around" more, which is probably a good thing (except to some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports).
So, I hope folks will give serious consideration to what would happen if sunrise was completely eliminated. With a few small tweaks (as noted above), it could be much better than we have for most people (except for those exploiting the current system).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. I know I've not written much above about the TM Claims notice aspect of the TMCH, but those are obviously have a chilling effect, with a 96%+ abandonment rate of registrations. A 90 day claims notice, which determined cybersquatters are going to ignore anyway, simply confuses legitimate registrants. The "ongoing notifications service" aspect of the TMCH is available through other companies, e.g. DomainTools or other domain monitoring services.
P.P.S. Some might argue that you can never collect $5K from registrants if they lose a UDRP. Shift some of that to the registrar, who can then police their own clients, a sort of "know your client" rule for those participating in landrushes. One can even envision a system of insurance, so that those who are involved in risky domain name registrations pay higher "insurance" (to indemnify their registrars) than less risky registrants who don't engage in cybersquatting. Or require a deposit at the start of the UDRP process (if one side doesn't post a deposit, they'd be in default). _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Of course, that was an average of 130 sunrise registration per new gTLD, not 130 overall. I think all of the numbers relating the new gTLD program have been quite a bit lower than expected, so sunrise registrations is just part of the larger trend. Maybe the only number that has bucked that trend is percentage of cybersquatting and other forms of abuse in at least some of the new gTLDs. I don't think there's any basis for most if not all of the factual assumptions in this email. Particularly, the percentage of gaming seems vastly overstated (even if one uses a definition of gaming that is overinclusive). This also betrays a complete lack of understanding of both the issues and solutions relative to online brand enforcement, resolving cybersquatting, etc. UDRP is only one of several solutions available where there is an issue. In addition, there are many instances where a claim could be pursued, but the cost of pursuing all those claims is prohibitive (so triage is necessary). I also have to say that this statement is both false and insulting: I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.). The stereotype of the greedy, money-grubbing lawyer who wants to suck up all their client's money rather than represent their client's best interests is as old as it is untrue (acknowledging that all profession/businesses have their bad actors, whether it's lawyers or domain investors). Further, for anyone who has been following the discussion, it would be easy to notice that (a) a lot of this work is handled "in-house" so greed is even more ridiculous as a motivation and (b) most if not all of us are very concerned with being cost-effective and prudent (or else there would be many more TMCH registrations and less concerns about the strategic decisions around what to put in the TMCH). Finally, the statement about "some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports," is just incorrect as a statement about the law, no matter how many times it is said. Trademark law does not distinguish between whether a mark is an invented (a/k/a "fanciful" or "coined") term or a so-called "dictionary term" -- both can be equally valid and equally strong as a trademark. (I won't rehash the discussion of "apple for apples" is generic and not protectable, but "apple for computers" is arbitrary and protectable, and that in between there are descriptive uses (which can be protectable) and suggestive uses (which are protectable), etc.) As such, I don't think any of the assumptions in this email are worth the paper they're printed on. That said, after 20 years of dealing with the abusive registration and use of domain names based on misappropriating the value those strings have as existing trademarks, I am open to thinking about a better way. Sunrises evolved over time in response to a problem. If someone can think of a better mousetrap, I'm all ears. But just throwing away the mousetraps, on the theory that the mouse damage isn't that bad, and that some of the cheesemakers are really rats themselves, and that the cheesemongers are protecting a broken system so they can exploit the cheesemakers, and that cheese really belongs to everybody -- that is a rathole that will lead us nowhere. Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com On Thu, Apr 13, 2017 at 3:53 PM, Reg Levy <reg@mmx.co> wrote:
I concur. There was some indication that the claims notice might be more helpful—registries are only required to provide claims notice for 90 days but the TMCH itself provides ongoing claims notices (for ongoing fees, to continue to justify its existence). I’m happy to allow that state of affairs to continue if the TMCH and its customers desire.
/R
Reg Levy VP Compliance + Policy | Minds + Machines Group Limited C: +1-310-963-7135 <(310)%20963-7135> S: RegLevy2
Current UTC offset: -7
On 13 Apr 2017, at 11:59, George Kirikos <icann@leap.com> wrote:
Hi folks,
(changing the subject accordingly)
On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming.
These numbers stand for the proposition that the sunrise period should be entirely eliminated, given that folks concede it "is a very small number", and thus is not conferring many benefits to those who register them defensively, since they're not utilizing the procedure. And the gaming that does exist is amplified, since it means that a higher percentage of the sunrise registrations are gamed. It could be that 30%, or even 50% of sunrise registrations are gamed, given the various blog posts and examples provided to this mailing list already (and how many others might exist "under the radar", that some folks are trying to keep hidden due to the lack of transparency of the TMCH).
Consider a "thought experiment" as to what would happen if Sunrise registrations and the TMCH were eliminated. Those 130 registrations would shift to either landrush or to general availability.
For those who are "gaming" the sunrise, they'd now be on an equal footing as everyone else.
For those legitimate TM holders, they can either register in landrush (or general availability), *or* they have curative rights protection mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* domains which conflict with their TM rights are registered by someone else and misused.
I could even support a "hybrid" (horse trading, as Phil called it yesterday) model, where landrush imposed **additional burdens** on registrants, e.g. paying costs if they lose a UDRP), but then that extra burden is eliminated during general availability (as it is today). This way, TM holders and legitimate end users who don't have trademarks but have non-conflicting uses, etc. are on equal footing during a landrush.
I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.).
Suppose that of the 130 sunrise registrations, half of them got registered by legitimate TM owners in landrush. Of the 65 that were registered by someone else, how many of those would actually be cases of cybersquatting? I would suggest it's a small number, given the overall stats of UDRPs relative to registrations. Even if it was a massive 2% (actual percentage is much, much lower), that might mean 1 extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might mean an extra 250 UDRPs per year. That's a relatively negligible amount.
If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) is $5,000 or so, that's $1.25 million/yr.
TMCH revenues, by contrast, are on the order of $5 million/yr for Deloitte. And perhaps another $5 million or more per year for all the TM agents, etc. filing on behalf of clients. Let's call it $10 million+ for TMCH-related fees on those using that system.
Trading $10 million/yr in "preventive" costs for $1.25 million/yr in "enforcement" costs -- that's a no-brainer for TM holders.
And if, as I argued above, if some of those UDRP enforcement costs are shifted to the losers (for landrush registrations), then the economics are even that much stronger for the elimination of the sunrise period (since that $1.25 million becomes even lower, due to cost recovery).
And of course, a system that has no landrush definitely benefits ordinary registrants and prospective registrants who simply want a "good" name, or at least a fair chance at one, and don't want to see "THE" or "FLOWERS" or "HOTEL" or all of the other common words being grabbed in sunrise.
Processes would be simplified for registry operators and registrars, if sunrises and TMCH were eliminated, which saves them money (which gets passed along as savings for consumers). TLDs would launch faster, too. The best second-level strings would be "spread around" more, which is probably a good thing (except to some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports).
So, I hope folks will give serious consideration to what would happen if sunrise was completely eliminated. With a few small tweaks (as noted above), it could be much better than we have for most people (except for those exploiting the current system).
Sincerely,
George Kirikos 416-588-0269 <(416)%20588-0269> http://www.leap.com/
P.S. I know I've not written much above about the TM Claims notice aspect of the TMCH, but those are obviously have a chilling effect, with a 96%+ abandonment rate of registrations. A 90 day claims notice, which determined cybersquatters are going to ignore anyway, simply confuses legitimate registrants. The "ongoing notifications service" aspect of the TMCH is available through other companies, e.g. DomainTools or other domain monitoring services.
P.P.S. Some might argue that you can never collect $5K from registrants if they lose a UDRP. Shift some of that to the registrar, who can then police their own clients, a sort of "know your client" rule for those participating in landrushes. One can even envision a system of insurance, so that those who are involved in risky domain name registrations pay higher "insurance" (to indemnify their registrars) than less risky registrants who don't engage in cybersquatting. Or require a deposit at the start of the UDRP process (if one side doesn't post a deposit, they'd be in default). _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Hi folks, On Thu, Apr 13, 2017 at 4:35 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Of course, that was an average of 130 sunrise registration per new gTLD, not 130 overall. I think all of the numbers relating the new gTLD program have been quite a bit lower than expected, so sunrise registrations is just part of the larger trend. Maybe the only number that has bucked that trend is percentage of cybersquatting and other forms of abuse in at least some of the new gTLDs.
No one claimed there were 130 overall. I implicitly multiplied by 1000 TLDs, when coming up with the numbers. Although, I did make a rounding error. i.e. 65 x 0.02 = 1.3 [had mistakenly rounded that to "1"]; multiplying by 1000 and dividing by 4 = 325 extra UDRPs per year, rather than 250. And that's $1.625 million/yr, rather than $1.250 million/yr. Still, it's much less than what's being spent on TMCH-related costs, especially when considering costs borne by registry operators, registrars, and registrants.
I also have to say that this statement is both false and insulting:
I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.).
The stereotype of the greedy, money-grubbing lawyer who wants to suck up all their client's money rather than represent their client's best interests is as old as it is untrue (acknowledging that all profession/businesses have their bad actors, whether it's lawyers or domain investors). Further, for anyone who has been following the discussion, it would be easy to notice that (a) a lot of this work is handled "in-house" so greed is even more ridiculous as a motivation and (b) most if not all of us are very concerned with being cost-effective and prudent (or else there would be many more TMCH registrations and less concerns about the strategic decisions around what to put in the TMCH).
Disagree, there's a lot of "scare mongering" to convince people to buy things they ultimately don't need or benefit from. It's being sold as a form of overpriced and ineffective insurance. Consider how many people were convinced to register .XXX domain names, needlessly. It wasn't just registries/registrars doing the scare mongering. The amounts wasted on defensive registrations, and TMCH (sold as an alternative to defensive registrations) could better be directed elsewhere. Consider how Verizon sued iREIT, with excellent outcomes for them. Much better result, and much greater deterrent effect than filing a UDRP or giving a "TMCH claims notice". There's a scene in the 1989 Batman: [Batman dangles a mugger over the side of a building] Nic: Don't kill me! Don't kill me, man! Don't kill me! Don't kill me, man! Batman: I'm not going to kill you. I want you to do me a favor. I want you to tell all your friends about me. Nic: What are you? Batman: I'm Batman. That's what Verizon did when they sued. I'm sure the "organized industrial cybersquatters" heard that message loud and clear, and cleaned their portfolios. Microsoft has done the same.
Finally, the statement about "some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports," is just incorrect as a statement about the law, no matter how many times it is said. Trademark law does not distinguish between whether a mark is an invented (a/k/a "fanciful" or "coined") term or a so-called "dictionary term" -- both can be equally valid and equally strong as a trademark. (I won't rehash the discussion of "apple for apples" is generic and not protectable, but "apple for computers" is arbitrary and protectable, and that in between there are descriptive uses (which can be protectable) and suggestive uses (which are protectable), etc.)
You obviously misread what I wrote --- note the word "exclusive" before "rights". Apple (of iPhone fame) has the most famous trademark in the world, arguably, but even they don't have exclusivity over the word 'apple' (NB: I'm a small shareholder in Apple, for disclosure). It's a valid trademark, but others can certainly use it without violating Apple's rights. Never claimed it was not protectable. I think if one crunches the numbers, elimination of the TMCH and sunrise would make obvious sense for registrars, registries, and registrants. For most TM holders, it would make sense, given I've shown how post-registration curative rights would be made better for them for any domains registered in landrush (higher standard to register, with financial penalties). [i.e. the horse trading Phil suggested] The math would probably work even without the horse trading. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
I have been involved in ICANN since its inception in 1998. While I agree that a fair number of attorneys have made some money dealing with DNS issues, I feel quite certain that very little of that came from either registering a client’s mark in the TMCH or counseling a client on Sunrise Registrations. Registries and Registrars have made a good bit of money on Sunrise registrations and Premium names and I see very few people vilifying their business modes. 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 4/13/17, 2:10 PM, "gnso-rpm-wg-bounces@icann.org on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote: Hi folks, On Thu, Apr 13, 2017 at 4:35 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: > Of course, that was an average of 130 sunrise registration per new gTLD, not > 130 overall. I think all of the numbers relating the new gTLD program have > been quite a bit lower than expected, so sunrise registrations is just part > of the larger trend. Maybe the only number that has bucked that trend is > percentage of cybersquatting and other forms of abuse in at least some of > the new gTLDs. No one claimed there were 130 overall. I implicitly multiplied by 1000 TLDs, when coming up with the numbers. Although, I did make a rounding error. i.e. 65 x 0.02 = 1.3 [had mistakenly rounded that to "1"]; multiplying by 1000 and dividing by 4 = 325 extra UDRPs per year, rather than 250. And that's $1.625 million/yr, rather than $1.250 million/yr. Still, it's much less than what's being spent on TMCH-related costs, especially when considering costs borne by registry operators, registrars, and registrants. > I also have to say that this statement is both false and insulting: > > I think many people are overly protective of the TMCH & sunrise period > not because it's "working", but because it's an opportunity for extra > consulting, revenue streams, etc. e.g. lawyers can tell their clients > "get registered", and they can make money from the filing fees, etc. > There's a huge amount of money being wasted, in my voice, that can be > redirected to other things (like curative rights, better education, > etc.). > > The stereotype of the greedy, money-grubbing lawyer who wants to suck up all > their client's money rather than represent their client's best interests is > as old as it is untrue (acknowledging that all profession/businesses have > their bad actors, whether it's lawyers or domain investors). Further, for > anyone who has been following the discussion, it would be easy to notice > that (a) a lot of this work is handled "in-house" so greed is even more > ridiculous as a motivation and (b) most if not all of us are very concerned > with being cost-effective and prudent (or else there would be many more TMCH > registrations and less concerns about the strategic decisions around what to > put in the TMCH). Disagree, there's a lot of "scare mongering" to convince people to buy things they ultimately don't need or benefit from. It's being sold as a form of overpriced and ineffective insurance. Consider how many people were convinced to register .XXX domain names, needlessly. It wasn't just registries/registrars doing the scare mongering. The amounts wasted on defensive registrations, and TMCH (sold as an alternative to defensive registrations) could better be directed elsewhere. Consider how Verizon sued iREIT, with excellent outcomes for them. Much better result, and much greater deterrent effect than filing a UDRP or giving a "TMCH claims notice". There's a scene in the 1989 Batman: [Batman dangles a mugger over the side of a building] Nic: Don't kill me! Don't kill me, man! Don't kill me! Don't kill me, man! Batman: I'm not going to kill you. I want you to do me a favor. I want you to tell all your friends about me. Nic: What are you? Batman: I'm Batman. That's what Verizon did when they sued. I'm sure the "organized industrial cybersquatters" heard that message loud and clear, and cleaned their portfolios. Microsoft has done the same. > Finally, the statement about "some who feel, wrongly, that they have > exclusive rights to common dictionary terms, etc., which is > not something the law supports," is just incorrect as a statement about the > law, no matter how many times it is said. Trademark law does not > distinguish between whether a mark is an invented (a/k/a "fanciful" or > "coined") term or a so-called "dictionary term" -- both can be equally valid > and equally strong as a trademark. (I won't rehash the discussion of "apple > for apples" is generic and not protectable, but "apple for computers" is > arbitrary and protectable, and that in between there are descriptive uses > (which can be protectable) and suggestive uses (which are protectable), > etc.) You obviously misread what I wrote --- note the word "exclusive" before "rights". Apple (of iPhone fame) has the most famous trademark in the world, arguably, but even they don't have exclusivity over the word 'apple' (NB: I'm a small shareholder in Apple, for disclosure). It's a valid trademark, but others can certainly use it without violating Apple's rights. Never claimed it was not protectable. I think if one crunches the numbers, elimination of the TMCH and sunrise would make obvious sense for registrars, registries, and registrants. For most TM holders, it would make sense, given I've shown how post-registration curative rights would be made better for them for any domains registered in landrush (higher standard to register, with financial penalties). [i.e. the horse trading Phil suggested] The math would probably work even without the horse trading. 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...
George, I'd be happy not to "waste money" on defensive registrations. How do you propose to replace the benefit that they give to those "defensive registrants" (i.e., taking a domain out of circulation, where that registrant is concerned about the potential abuse of that domain)? Greg *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com On Thu, Apr 13, 2017 at 5:29 PM, J. Scott Evans via gnso-rpm-wg < gnso-rpm-wg@icann.org> wrote:
I have been involved in ICANN since its inception in 1998. While I agree that a fair number of attorneys have made some money dealing with DNS issues, I feel quite certain that very little of that came from either registering a client’s mark in the TMCH or counseling a client on Sunrise Registrations. Registries and Registrars have made a good bit of money on Sunrise registrations and Premium names and I see very few people vilifying their business modes.
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 4/13/17, 2:10 PM, "gnso-rpm-wg-bounces@icann.org on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
Hi folks,
On Thu, Apr 13, 2017 at 4:35 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: > Of course, that was an average of 130 sunrise registration per new gTLD, not > 130 overall. I think all of the numbers relating the new gTLD program have > been quite a bit lower than expected, so sunrise registrations is just part > of the larger trend. Maybe the only number that has bucked that trend is > percentage of cybersquatting and other forms of abuse in at least some of > the new gTLDs.
No one claimed there were 130 overall. I implicitly multiplied by 1000 TLDs, when coming up with the numbers. Although, I did make a rounding error. i.e. 65 x 0.02 = 1.3 [had mistakenly rounded that to "1"]; multiplying by 1000 and dividing by 4 = 325 extra UDRPs per year, rather than 250. And that's $1.625 million/yr, rather than $1.250 million/yr.
Still, it's much less than what's being spent on TMCH-related costs, especially when considering costs borne by registry operators, registrars, and registrants.
> I also have to say that this statement is both false and insulting: > > I think many people are overly protective of the TMCH & sunrise period > not because it's "working", but because it's an opportunity for extra > consulting, revenue streams, etc. e.g. lawyers can tell their clients > "get registered", and they can make money from the filing fees, etc. > There's a huge amount of money being wasted, in my voice, that can be > redirected to other things (like curative rights, better education, > etc.). > > The stereotype of the greedy, money-grubbing lawyer who wants to suck up all > their client's money rather than represent their client's best interests is > as old as it is untrue (acknowledging that all profession/businesses have > their bad actors, whether it's lawyers or domain investors). Further, for > anyone who has been following the discussion, it would be easy to notice > that (a) a lot of this work is handled "in-house" so greed is even more > ridiculous as a motivation and (b) most if not all of us are very concerned > with being cost-effective and prudent (or else there would be many more TMCH > registrations and less concerns about the strategic decisions around what to > put in the TMCH).
Disagree, there's a lot of "scare mongering" to convince people to buy things they ultimately don't need or benefit from. It's being sold as a form of overpriced and ineffective insurance.
Consider how many people were convinced to register .XXX domain names, needlessly. It wasn't just registries/registrars doing the scare mongering.
The amounts wasted on defensive registrations, and TMCH (sold as an alternative to defensive registrations) could better be directed elsewhere.
Consider how Verizon sued iREIT, with excellent outcomes for them. Much better result, and much greater deterrent effect than filing a UDRP or giving a "TMCH claims notice".
There's a scene in the 1989 Batman:
[Batman dangles a mugger over the side of a building] Nic: Don't kill me! Don't kill me, man! Don't kill me! Don't kill me, man! Batman: I'm not going to kill you. I want you to do me a favor. I want you to tell all your friends about me. Nic: What are you? Batman: I'm Batman.
That's what Verizon did when they sued. I'm sure the "organized industrial cybersquatters" heard that message loud and clear, and cleaned their portfolios. Microsoft has done the same.
> Finally, the statement about "some who feel, wrongly, that they have > exclusive rights to common dictionary terms, etc., which is > not something the law supports," is just incorrect as a statement about the > law, no matter how many times it is said. Trademark law does not > distinguish between whether a mark is an invented (a/k/a "fanciful" or > "coined") term or a so-called "dictionary term" -- both can be equally valid > and equally strong as a trademark. (I won't rehash the discussion of "apple > for apples" is generic and not protectable, but "apple for computers" is > arbitrary and protectable, and that in between there are descriptive uses > (which can be protectable) and suggestive uses (which are protectable), > etc.)
You obviously misread what I wrote --- note the word "exclusive" before "rights". Apple (of iPhone fame) has the most famous trademark in the world, arguably, but even they don't have exclusivity over the word 'apple' (NB: I'm a small shareholder in Apple, for disclosure). It's a valid trademark, but others can certainly use it without violating Apple's rights. Never claimed it was not protectable.
I think if one crunches the numbers, elimination of the TMCH and sunrise would make obvious sense for registrars, registries, and registrants. For most TM holders, it would make sense, given I've shown how post-registration curative rights would be made better for them for any domains registered in landrush (higher standard to register, with financial penalties). [i.e. the horse trading Phil suggested] The math would probably work even without the horse trading.
Sincerely,
George Kirikos 416-588-0269 https://na01.safelinks.protection.outlook.com/?url= http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C% 7C59a2b91cb0e0421977d408d482b1877b%7Cfa7b1b5a7b34438794aed2c178de cee1%7C0%7C0%7C636277146371486663&sdata=OpIpVtTXbHABOuid5hj9uAwwrZcEuz PIjJg%2B5sb%2Btas%3D&reserved=0 _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url= https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso- rpm-wg&data=02%7C01%7C%7C59a2b91cb0e0421977d408d482b1877b% 7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277146371486663&sdata= DnWEKBHs2KcoNlTV%2BuBxnrcOgvFvbxxV28I1m1Lbp1s%3D&reserved=0
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Greg, On Thu, Apr 13, 2017 at 5:38 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I'd be happy not to "waste money" on defensive registrations. How do you propose to replace the benefit that they give to those "defensive registrants" (i.e., taking a domain out of circulation, where that registrant is concerned about the potential abuse of that domain)?
I'm 100% on your side on this issue, that unwanted defensive registrations are a burden. As an economics-driven person, I hate to see money wasted. 1. There is no need to "take a domain name out of circulation", if the domain name ends up in the hands of a good faith buyer using it in a different context. To use the example of "apple", why would Apple (of iPhone fame) care if Apple.recipes or Apple.menu is used for the actual posting of recipes for the fruit, etc? For a long, long time, Amazon.net has been owned owned by a legitimate entity different from the owner of Amazon.com, for example. The world hasn't ended....(and that's one less $10/yr renewal fee for Jeff Bezos' company). 2. For those domains that *are* misused, reduce enforcement costs (i.e. financial penalties on the landrush registrant in a UDRP, that get paid directly to the victor, etc.). This goes back to a point that J. Scott and I had informal agreement on a while ago, namely that the "representations" section of the UDRP might need more "teeth" 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." There's little downside to that, for liars. Impose some on the "more sophisticated" (and those participating in landrush arguably are), and the economics of cybersquatting change. You'll note most cybersquatting happens on domains bought for less than $100 (i.e. registered at reg-fee, typically, of $10 or less). If there's a possibility of losing $5,000, that'd be more serious. Sunrise and landrush registrants arguably are "sophisticated", so raise the standards. Eliminate sunrise, and the sunrise demand (those 130 domains) shifts to landrush. What would then happen in landrush? Domains like Google.TLD, Adsense.TLD, Microsoft.TLD, etc. matching a famous brand would almost assuredly go to their (famous) markholders, if they applied during landrush (which presumably they would, if they're worried enough to apply in sunrise today). If there were multiple applicants (which seems to be your concern??), what kind of idiot would be outbidding those firms, especially if there were actual financial penalties supplementing the existing UDRP? And if those famous firms did lose an auction, certainly they'd later win at UDRP, URS, etc. (unless those registrants simply sat on the domains and did absolutely nothing, which arguably is an even better outcome for the brand owners, since they're not paying the renewal costs! it might be a minor 'annoyance', but as long as there's no misuse, there's little harm) But, common dictionary terms like domains like Hotel.TLD, Flowers.TLD, etc., that previously were gamed in sunrise would now be opened up to landrush. That would kill the business model of the "gamers", since there'd be competition for those terms. [simplified analysis, since some of those would be marked 'premium' the way new gTLDs are handled now] The highest and best use for those terms wouldn't be cybersquatting-related. As an aside, as I noted in chat the other day, I'd also suggest reducing "carrying" costs for defensive registrations, by halving the registry fees for domain names with no nameservers. E.g. if you own the typo domain wwwbrand.com [note the lack of a dot between 'w' and 'b'], have it in the zone file, and are redirecting it to www.brand.com, registry costs would be unchanged (since the registrant is benefiting from the domain, and it's in the zone file). But, let's say you own BrandSucks.com or other "worthless" domains, and own it for purely defensive registration, with no nameservers so that it's not in the zone file and not resolving -- I'd chop the registry fees for those by half (or some other amount). Those are a complete waste of money. e.g. domains like those at: http://domainnamewire.com/2016/08/17/franklin-coveys-leader-defensive-domain... http://domainnamewire.com/2015/09/22/kaiser-registers-killing-domains/ should be discounted (by the registry, and then savings passed along by registrars to registrants) if they're not in the zone file. So, if we can get the curative rights enforcement costs on brand owners lowered, and also reduce the incentives for cybersquatting (e.g. financial penalties losing UDRPs for domains registered in a landrush would kill demand too, besides compensating brand owners), would that be a step in the right direction? I really do think there are ways to "sunset" the entire sunrise system, while still leading to an overall "win" for everyone. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George,
1. There is no need to "take a domain name out of circulation", if the domain name ends up in the hands of a good faith buyer using it in a different context.
That's a very, very, very, very, very big "if." An "if" as big as all of the domains that have been abused over the last 20 years, plus all the defensive registrations purchased out of fear of abuse. That could be in the millions. Anyone who has maintained a trademark and domain name portfolio for a company or a celebrity knows how many abusive domain names there are out there, and how many they have had to acquire (by various means) over the years. A world where there is no need for a company to take a domain name out of circulation, because there was no need to do so is a pipe dream. To use the example of "apple", why would Apple (of
iPhone fame) care if Apple.recipes or Apple.menu is used for the actual posting of recipes for the fruit, etc?
I won't speak for Apple (since I don't represent them) but let's talk about a hypothetical "Peach" company. If there was a 100% chance that peach.recipes or peach.menu would only be used for recipes or other good faith unrelated uses, that would be great for many companies. But there's no way to know.
For a long, long time, Amazon.net has been owned owned by a legitimate entity different from the owner of Amazon.com, for example. The world hasn't ended....(and that's one less $10/yr renewal fee for Jeff Bezos' company).
I have no idea what Amazon would have been able to do with Amazon.net, and I suppose we'll never know. Of course, one could assume that domain names don't really matter that much, but if that were the case, we'd never be having this conversation.
2. For those domains that *are* misused, reduce enforcement costs (i.e. financial penalties on the landrush registrant in a UDRP, that get paid directly to the victor, etc.).
A system that relies solely on enforcement puts a huge burden on the brandowner, as Marc Trachtenberg has already noted.
This goes back to a point that J. Scott and I had informal agreement on a while ago, namely that the "representations" section of the UDRP might need more "teeth"
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."
There's little downside to that, for liars. Impose some on the "more sophisticated" (and those participating in landrush arguably are), and the economics of cybersquatting change. You'll note most cybersquatting happens on domains bought for less than $100 (i.e. registered at reg-fee, typically, of $10 or less). If there's a possibility of losing $5,000, that'd be more serious.
Sunrise and landrush registrants arguably are "sophisticated", so raise the standards. Eliminate sunrise, and the sunrise demand (those 130 domains) shifts to landrush. What would then happen in landrush?
Domains like Google.TLD, Adsense.TLD, Microsoft.TLD, etc. matching a famous brand would almost assuredly go to their (famous) markholders, if they applied during landrush (which presumably they would, if they're worried enough to apply in sunrise today). If there were multiple applicants (which seems to be your concern??),
No -- the concern is abusive registrations that would take advantage in some fashion of association with the trademark. Also, anything that is limited to "famous" markholders is also a non-starter.
what kind of idiot would be outbidding those firms, especially if there were actual financial penalties supplementing the existing UDRP?
A solution that involves trademark owners spending even more money, and solving every problem by throwing money at the domain name industry, is a non-starter.
And if those famous firms did lose an auction, certainly they'd later win at UDRP, URS, etc. (unless those registrants simply sat on the domains and did absolutely nothing, which arguably is an even better outcome for the brand owners, since they're not paying the renewal costs! it might be a minor 'annoyance', but as long as there's no misuse, there's little harm)
But, common dictionary terms like domains like Hotel.TLD, Flowers.TLD, etc., that previously were gamed in sunrise would now be opened up to landrush.
Based on the discussion earlier, it didn't seem to me that Flowers.tld was "gamed" no matter what the definition of gaming. I didn't dig through the back and forth on hotel.tld. I'm concerned with a lot of the accusations of gaming that were made that didn't seem to hold water as they were examined.... I would limit the discussion of gaming Sunrise to "faux trademark owners" who obtained trademark registrations solely to get into the TMCH and then register domains for resale during sunrise. I like the Uniregistry solution to that (eliminating profiteering on sunrise registrations)....
That would kill the business model of the "gamers", since there'd be competition for those terms. [simplified analysis, since some of those would be marked 'premium' the way new gTLDs are handled now] The highest and best use for those terms wouldn't be cybersquatting-related.
Throwing more money at everything is not a solution. And I have no idea whether
As an aside, as I noted in chat the other day, I'd also suggest reducing "carrying" costs for defensive registrations, by halving the registry fees for domain names with no nameservers. E.g. if you own the typo domain wwwbrand.com [note the lack of a dot between 'w' and 'b'], have it in the zone file, and are redirecting it to www.brand.com, registry costs would be unchanged (since the registrant is benefiting from the domain, and it's in the zone file). But, let's say you own BrandSucks.com or other "worthless" domains, and own it for purely defensive registration, with no nameservers so that it's not in the zone file and not resolving -- I'd chop the registry fees for those by half (or some other amount). Those are a complete waste of money. e.g. domains like those at:
http://domainnamewire.com/2016/08/17/franklin-coveys- leader-defensive-domain-names/ http://domainnamewire.com/2015/09/22/kaiser-registers-killing-domains/
should be discounted (by the registry, and then savings passed along by registrars to registrants) if they're not in the zone file.
So, if we can get the curative rights enforcement costs on brand owners lowered, and also reduce the incentives for cybersquatting (e.g. financial penalties losing UDRPs for domains registered in a landrush would kill demand too, besides compensating brand owners),
I don't think anything that depends solely on curative rights is going to go anywhere. This also ignores the "positive" idea behind sunrise -- that trademark owners are going to register their brands as domains in new gTLDs for the "right" reasons (to use them to offer goods and services using the brand) and not for defensive reasons. Sunrise is not solely a defensive solution. I'm also very skeptical about the idea of disincentivizing cybersquatters, especially since many of them work on volume, so they'll find a way to cut loose any domain where a challenge is being made without spending big bucks. Financial penalties on defaulting respondents is also not going to solve anything, because they will be nowhere to be found. That's not really a reduction in costs (though I'd certainly be in favor of considering damages in UDRP cases, but let's not jump the gun). A reduction in costs would have to be a reduction in spend, not the possibility of compensation -- and the spend related to combating cybersquatting goes way beyond the direct costs of a UDRP.
would that be a step in the right direction? I really do think there are ways to "sunset" the entire sunrise system, while still leading to an overall "win" for everyone.
I appreciate the effort....
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
+1 Greg Sent from my iPhone On Apr 14, 2017, at 1:01 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: George, 1. There is no need to "take a domain name out of circulation", if the domain name ends up in the hands of a good faith buyer using it in a different context. That's a very, very, very, very, very big "if." An "if" as big as all of the domains that have been abused over the last 20 years, plus all the defensive registrations purchased out of fear of abuse. That could be in the millions. Anyone who has maintained a trademark and domain name portfolio for a company or a celebrity knows how many abusive domain names there are out there, and how many they have had to acquire (by various means) over the years. A world where there is no need for a company to take a domain name out of circulation, because there was no need to do so is a pipe dream. To use the example of "apple", why would Apple (of iPhone fame) care if Apple.recipes or Apple.menu is used for the actual posting of recipes for the fruit, etc? I won't speak for Apple (since I don't represent them) but let's talk about a hypothetical "Peach" company. If there was a 100% chance that peach.recipes or peach.menu would only be used for recipes or other good faith unrelated uses, that would be great for many companies. But there's no way to know. For a long, long time, Amazon.net<http://Amazon.net> has been owned owned by a legitimate entity different from the owner of Amazon.com<http://Amazon.com>, for example. The world hasn't ended....(and that's one less $10/yr renewal fee for Jeff Bezos' company). I have no idea what Amazon would have been able to do with Amazon.net<http://Amazon.net>, and I suppose we'll never know. Of course, one could assume that domain names don't really matter that much, but if that were the case, we'd never be having this conversation. 2. For those domains that *are* misused, reduce enforcement costs (i.e. financial penalties on the landrush registrant in a UDRP, that get paid directly to the victor, etc.). A system that relies solely on enforcement puts a huge burden on the brandowner, as Marc Trachtenberg has already noted. This goes back to a point that J. Scott and I had informal agreement on a while ago, namely that the "representations" section of the UDRP might need more "teeth" 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." There's little downside to that, for liars. Impose some on the "more sophisticated" (and those participating in landrush arguably are), and the economics of cybersquatting change. You'll note most cybersquatting happens on domains bought for less than $100 (i.e. registered at reg-fee, typically, of $10 or less). If there's a possibility of losing $5,000, that'd be more serious. Sunrise and landrush registrants arguably are "sophisticated", so raise the standards. Eliminate sunrise, and the sunrise demand (those 130 domains) shifts to landrush. What would then happen in landrush? Domains like Google.TLD, Adsense.TLD, Microsoft.TLD, etc. matching a famous brand would almost assuredly go to their (famous) markholders, if they applied during landrush (which presumably they would, if they're worried enough to apply in sunrise today). If there were multiple applicants (which seems to be your concern??), No -- the concern is abusive registrations that would take advantage in some fashion of association with the trademark. Also, anything that is limited to "famous" markholders is also a non-starter. what kind of idiot would be outbidding those firms, especially if there were actual financial penalties supplementing the existing UDRP? A solution that involves trademark owners spending even more money, and solving every problem by throwing money at the domain name industry, is a non-starter. And if those famous firms did lose an auction, certainly they'd later win at UDRP, URS, etc. (unless those registrants simply sat on the domains and did absolutely nothing, which arguably is an even better outcome for the brand owners, since they're not paying the renewal costs! it might be a minor 'annoyance', but as long as there's no misuse, there's little harm) But, common dictionary terms like domains like Hotel.TLD, Flowers.TLD, etc., that previously were gamed in sunrise would now be opened up to landrush. Based on the discussion earlier, it didn't seem to me that Flowers.tld was "gamed" no matter what the definition of gaming. I didn't dig through the back and forth on hotel.tld. I'm concerned with a lot of the accusations of gaming that were made that didn't seem to hold water as they were examined.... I would limit the discussion of gaming Sunrise to "faux trademark owners" who obtained trademark registrations solely to get into the TMCH and then register domains for resale during sunrise. I like the Uniregistry solution to that (eliminating profiteering on sunrise registrations).... That would kill the business model of the "gamers", since there'd be competition for those terms. [simplified analysis, since some of those would be marked 'premium' the way new gTLDs are handled now] The highest and best use for those terms wouldn't be cybersquatting-related. Throwing more money at everything is not a solution. And I have no idea whether As an aside, as I noted in chat the other day, I'd also suggest reducing "carrying" costs for defensive registrations, by halving the registry fees for domain names with no nameservers. E.g. if you own the typo domain wwwbrand.com<http://wwwbrand.com> [note the lack of a dot between 'w' and 'b'], have it in the zone file, and are redirecting it to www.brand.com<http://www.brand.com>, registry costs would be unchanged (since the registrant is benefiting from the domain, and it's in the zone file). But, let's say you own BrandSucks.com<http://BrandSucks.com> or other "worthless" domains, and own it for purely defensive registration, with no nameservers so that it's not in the zone file and not resolving -- I'd chop the registry fees for those by half (or some other amount). Those are a complete waste of money. e.g. domains like those at: http://domainnamewire.com/2016/08/17/franklin-coveys-leader-defensive-domain... http://domainnamewire.com/2015/09/22/kaiser-registers-killing-domains/ should be discounted (by the registry, and then savings passed along by registrars to registrants) if they're not in the zone file. So, if we can get the curative rights enforcement costs on brand owners lowered, and also reduce the incentives for cybersquatting (e.g. financial penalties losing UDRPs for domains registered in a landrush would kill demand too, besides compensating brand owners), I don't think anything that depends solely on curative rights is going to go anywhere. This also ignores the "positive" idea behind sunrise -- that trademark owners are going to register their brands as domains in new gTLDs for the "right" reasons (to use them to offer goods and services using the brand) and not for defensive reasons. Sunrise is not solely a defensive solution. I'm also very skeptical about the idea of disincentivizing cybersquatters, especially since many of them work on volume, so they'll find a way to cut loose any domain where a challenge is being made without spending big bucks. Financial penalties on defaulting respondents is also not going to solve anything, because they will be nowhere to be found. That's not really a reduction in costs (though I'd certainly be in favor of considering damages in UDRP cases, but let's not jump the gun). A reduction in costs would have to be a reduction in spend, not the possibility of compensation -- and the spend related to combating cybersquatting goes way beyond the direct costs of a UDRP. would that be a step in the right direction? I really do think there are ways to "sunset" the entire sunrise system, while still leading to an overall "win" for everyone. I appreciate the effort.... 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Hello, On Fri, Apr 14, 2017 at 1:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Anyone who has maintained a trademark and domain name portfolio for a company or a celebrity knows how many abusive domain names there are out there, and how many they have had to acquire (by various means) over the years. A world where there is no need for a company to take a domain name out of circulation, because there was no need to do so is a pipe dream.
We're talking about 130 domains/TLD, in sunrise. The numbers speak for themselves. Use it, or lose it.
I won't speak for Apple (since I don't represent them) but let's talk about a hypothetical "Peach" company. If there was a 100% chance that peach.recipes or peach.menu would only be used for recipes or other good faith unrelated uses, that would be great for many companies. But there's no way to know.
As I said, raise the bar in landrush. Share liability with registrars (who can't escape liability easily). Insurance rates would be higher for "risky" domain name registrants. e.g. the cost for Apple (iPhone maker) to indemnify CSC or Markmonitor to register Apple.TLD would be $0. Cost for John Zuccarini would be much higher, to indemnify his registrar against risk of misuse.
A solution that involves trademark owners spending even more money, and solving every problem by throwing money at the domain name industry, is a non-starter.
They're not spending that money now (130 sunrise registrations, remember). And they're spending perhaps $10MM/yr on TMCH (direct fees, plus time, etc.). Spend smarter, by eliminating the ineffective TMCH that has too many negative consequences upon others.
Based on the discussion earlier, it didn't seem to me that Flowers.tld was "gamed" no matter what the definition of gaming. I didn't dig through the back and forth on hotel.tld. I'm concerned with a lot of the accusations of gaming that were made that didn't seem to hold water as they were examined....
If they relied upon an obscure country's registered TM (let's see the TMCH opened up to check) to register in sunrise, then I (and many others) would disagree. The mantra that "a TM is a TM is a TM" is untrue, despite how often some want to repeat it.
Financial penalties on defaulting respondents is also not going to solve anything, because they will be nowhere to be found.
Read what I proposed more closely. By involving registrars (contracted parties) to share in the liability of landush ("know your client", etc.), someone to pay is much easier to find. (registrars have to have liability insurance in place, too). If folks keep an open mind, and just look at the numbers, it's not as outlandish as you might think. As I noted above, I'd be happy to see new gTLDs keep failing.....but, at least I'm putting forth some ideas that eliminate some of the unfairness in the bad policies that were part of the sausage factory when they were created. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
I believe the 130 is an average per extension Original Message From: George Kirikos Sent: Friday, April 14, 2017 3:38 PM To: Greg Shatan Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH Hello, On Fri, Apr 14, 2017 at 1:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Anyone who has maintained a trademark and domain name portfolio for a company or a celebrity knows how many abusive domain names there are out there, and how many they have had to acquire (by various means) over the years. A world where there is no need for a company to take a domain name out of circulation, because there was no need to do so is a pipe dream.
We're talking about 130 domains/TLD, in sunrise. The numbers speak for themselves. Use it, or lose it.
I won't speak for Apple (since I don't represent them) but let's talk about a hypothetical "Peach" company. If there was a 100% chance that peach.recipes or peach.menu would only be used for recipes or other good faith unrelated uses, that would be great for many companies. But there's no way to know.
As I said, raise the bar in landrush. Share liability with registrars (who can't escape liability easily). Insurance rates would be higher for "risky" domain name registrants. e.g. the cost for Apple (iPhone maker) to indemnify CSC or Markmonitor to register Apple.TLD would be $0. Cost for John Zuccarini would be much higher, to indemnify his registrar against risk of misuse.
A solution that involves trademark owners spending even more money, and solving every problem by throwing money at the domain name industry, is a non-starter.
They're not spending that money now (130 sunrise registrations, remember). And they're spending perhaps $10MM/yr on TMCH (direct fees, plus time, etc.). Spend smarter, by eliminating the ineffective TMCH that has too many negative consequences upon others.
Based on the discussion earlier, it didn't seem to me that Flowers.tld was "gamed" no matter what the definition of gaming. I didn't dig through the back and forth on hotel.tld. I'm concerned with a lot of the accusations of gaming that were made that didn't seem to hold water as they were examined....
If they relied upon an obscure country's registered TM (let's see the TMCH opened up to check) to register in sunrise, then I (and many others) would disagree. The mantra that "a TM is a TM is a TM" is untrue, despite how often some want to repeat it.
Financial penalties on defaulting respondents is also not going to solve anything, because they will be nowhere to be found.
Read what I proposed more closely. By involving registrars (contracted parties) to share in the liability of landush ("know your client", etc.), someone to pay is much easier to find. (registrars have to have liability insurance in place, too). If folks keep an open mind, and just look at the numbers, it's not as outlandish as you might think. As I noted above, I'd be happy to see new gTLDs keep failing.....but, at least I'm putting forth some ideas that eliminate some of the unfairness in the bad policies that were part of the sausage factory when they were created. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
You are correct Georges 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 4/14/17, 12:39 PM, "gnso-rpm-wg-bounces@icann.org on behalf of Nahitchevansky, Georges" <gnso-rpm-wg-bounces@icann.org on behalf of ghn@kilpatricktownsend.com> wrote: I believe the 130 is an average per extension Original Message From: George Kirikos Sent: Friday, April 14, 2017 3:38 PM To: Greg Shatan Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH Hello, On Fri, Apr 14, 2017 at 1:01 AM, Greg Shatan <gregshatanipc@gmail.com> wrote: >Anyone who has maintained a trademark and domain name > portfolio for a company or a celebrity knows how many abusive domain names > there are out there, and how many they have had to acquire (by various > means) over the years. A world where there is no need for a company to take > a domain name out of circulation, because there was no need to do so is a > pipe dream. We're talking about 130 domains/TLD, in sunrise. The numbers speak for themselves. Use it, or lose it. > I won't speak for Apple (since I don't represent them) but let's talk about > a hypothetical "Peach" company. If there was a 100% chance that > peach.recipes or peach.menu would only be used for recipes or other good > faith unrelated uses, that would be great for many companies. But there's no > way to know. As I said, raise the bar in landrush. Share liability with registrars (who can't escape liability easily). Insurance rates would be higher for "risky" domain name registrants. e.g. the cost for Apple (iPhone maker) to indemnify CSC or Markmonitor to register Apple.TLD would be $0. Cost for John Zuccarini would be much higher, to indemnify his registrar against risk of misuse. > A solution that involves trademark owners spending even more money, and > solving every problem by throwing money at the domain name industry, is a > non-starter. They're not spending that money now (130 sunrise registrations, remember). And they're spending perhaps $10MM/yr on TMCH (direct fees, plus time, etc.). Spend smarter, by eliminating the ineffective TMCH that has too many negative consequences upon others. > Based on the discussion earlier, it didn't seem to me that Flowers.tld was > "gamed" no matter what the definition of gaming. I didn't dig through the > back and forth on hotel.tld. I'm concerned with a lot of the accusations of > gaming that were made that didn't seem to hold water as they were > examined.... If they relied upon an obscure country's registered TM (let's see the TMCH opened up to check) to register in sunrise, then I (and many others) would disagree. The mantra that "a TM is a TM is a TM" is untrue, despite how often some want to repeat it. > Financial penalties on defaulting respondents is also not going to solve > anything, because they will be nowhere to be found. Read what I proposed more closely. By involving registrars (contracted parties) to share in the liability of landush ("know your client", etc.), someone to pay is much easier to find. (registrars have to have liability insurance in place, too). If folks keep an open mind, and just look at the numbers, it's not as outlandish as you might think. As I noted above, I'd be happy to see new gTLDs keep failing.....but, at least I'm putting forth some ideas that eliminate some of the unfairness in the bad policies that were part of the sausage factory when they were created. 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... ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.or...
So wE are to presume there is gaming/abuse, guess at what types of gaming/abuse have occurred, Then propose a solution based upon the above? And all because of an argument that the TMCH database is confidential notwithstanding there being neither contractual nor a legal basis for such an argument? And when one side proposes limitations on the type of TMCH data being requested (to address the confidentiality argument) opposition says it ism"chasing a rathole"? Now it is suggested that we merely rely upon peoples memory and presumptions.... Doesn't sound like an effective (or correct) way to co duct our affairs. Sent from my iPad
On 13 Apr 2017, at 20:59, George Kirikos <icann@leap.com> wrote:
Hi folks,
(changing the subject accordingly)
On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming.
These numbers stand for the proposition that the sunrise period should be entirely eliminated, given that folks concede it "is a very small number", and thus is not conferring many benefits to those who register them defensively, since they're not utilizing the procedure. And the gaming that does exist is amplified, since it means that a higher percentage of the sunrise registrations are gamed. It could be that 30%, or even 50% of sunrise registrations are gamed, given the various blog posts and examples provided to this mailing list already (and how many others might exist "under the radar", that some folks are trying to keep hidden due to the lack of transparency of the TMCH).
Consider a "thought experiment" as to what would happen if Sunrise registrations and the TMCH were eliminated. Those 130 registrations would shift to either landrush or to general availability.
For those who are "gaming" the sunrise, they'd now be on an equal footing as everyone else.
For those legitimate TM holders, they can either register in landrush (or general availability), *or* they have curative rights protection mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* domains which conflict with their TM rights are registered by someone else and misused.
I could even support a "hybrid" (horse trading, as Phil called it yesterday) model, where landrush imposed **additional burdens** on registrants, e.g. paying costs if they lose a UDRP), but then that extra burden is eliminated during general availability (as it is today). This way, TM holders and legitimate end users who don't have trademarks but have non-conflicting uses, etc. are on equal footing during a landrush.
I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.).
Suppose that of the 130 sunrise registrations, half of them got registered by legitimate TM owners in landrush. Of the 65 that were registered by someone else, how many of those would actually be cases of cybersquatting? I would suggest it's a small number, given the overall stats of UDRPs relative to registrations. Even if it was a massive 2% (actual percentage is much, much lower), that might mean 1 extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might mean an extra 250 UDRPs per year. That's a relatively negligible amount.
If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) is $5,000 or so, that's $1.25 million/yr.
TMCH revenues, by contrast, are on the order of $5 million/yr for Deloitte. And perhaps another $5 million or more per year for all the TM agents, etc. filing on behalf of clients. Let's call it $10 million+ for TMCH-related fees on those using that system.
Trading $10 million/yr in "preventive" costs for $1.25 million/yr in "enforcement" costs -- that's a no-brainer for TM holders.
And if, as I argued above, if some of those UDRP enforcement costs are shifted to the losers (for landrush registrations), then the economics are even that much stronger for the elimination of the sunrise period (since that $1.25 million becomes even lower, due to cost recovery).
And of course, a system that has no landrush definitely benefits ordinary registrants and prospective registrants who simply want a "good" name, or at least a fair chance at one, and don't want to see "THE" or "FLOWERS" or "HOTEL" or all of the other common words being grabbed in sunrise.
Processes would be simplified for registry operators and registrars, if sunrises and TMCH were eliminated, which saves them money (which gets passed along as savings for consumers). TLDs would launch faster, too. The best second-level strings would be "spread around" more, which is probably a good thing (except to some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports).
So, I hope folks will give serious consideration to what would happen if sunrise was completely eliminated. With a few small tweaks (as noted above), it could be much better than we have for most people (except for those exploiting the current system).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. I know I've not written much above about the TM Claims notice aspect of the TMCH, but those are obviously have a chilling effect, with a 96%+ abandonment rate of registrations. A 90 day claims notice, which determined cybersquatters are going to ignore anyway, simply confuses legitimate registrants. The "ongoing notifications service" aspect of the TMCH is available through other companies, e.g. DomainTools or other domain monitoring services.
P.P.S. Some might argue that you can never collect $5K from registrants if they lose a UDRP. Shift some of that to the registrar, who can then police their own clients, a sort of "know your client" rule for those participating in landrushes. One can even envision a system of insurance, so that those who are involved in risky domain name registrations pay higher "insurance" (to indemnify their registrars) than less risky registrants who don't engage in cybersquatting. Or require a deposit at the start of the UDRP process (if one side doesn't post a deposit, they'd be in default). _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
What is the exact timing differential of the TMCH notices versus what's made available from CZDS? This is important before anyone were to assume TMCH notices don't add some value. I think they probably do. Especially for the first day or two of registrations when MX records may be used for an attack. I don't think we are asking the right questions regarding gaming. Gaming always exists in any system. I am not convinced there is a systemic problem with the TMCH just because some early adopters gamed the system. It's too early to draw any conclusions from the number of sunrise registrations for similar reasons that it would be to do so regarding the URS. It will take a bit more time for trademark owners to get used to the landscape. While most phishing sites are on compromised domains that has nothing to do with trademark abuse, there is no question that spear-phishing and other scams like BEC (which often begins with phishing emails) is on the rise, and without the TMCH, businesses generally will be set back in the fight against cybercrime--including sunrise. I agree there are other even more important steps that must be taken, such as giving the UDRP more "teeth", but there is no good basis so early, relatively speaking in the roll out of new gTLDs, to do away with these important tools to mitigate abuse. The fact that systems can and will be gamed is a fact we cannot change. Whether its a significant enough problem to merit attention--I am not convined based on anectodal evidence that it merits our attention any more so ghan I would be convinced the new UDRP rules need to be changed just because there is gamesmanship going on that is causing an increase in cyberflight, which there seems to be. But like I said, gamesmanship in and of itself is not a problem--it's a fact of life for EVERY system. Does it merit attention for the TMCH? I am not convinced. Happy holidays for those celebrating. Cheers, Jonathan On Thu, 13 Apr 2017 at 11:59 George Kirikos <icann@leap.com> wrote:
Hi folks,
(changing the subject accordingly)
On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg <gnso-rpm-wg@icann.org> wrote:
I think all of this is a huge red herring. If my memory serves me, there have only been about 130 Sunrise Registrations. That is a very small number when compared to the number of second level domains registered in the new TLDs. I think it is safe to assume that there has been some gaming. We don’t need to do an exhaustive investigation. What we need to do is look at reasonable solutions to the gaming problem. I have not seen any proposals for you on how to handle the problem. We need to close down this unproductive discussion and move on to finding solutions to the problem of gaming.
These numbers stand for the proposition that the sunrise period should be entirely eliminated, given that folks concede it "is a very small number", and thus is not conferring many benefits to those who register them defensively, since they're not utilizing the procedure. And the gaming that does exist is amplified, since it means that a higher percentage of the sunrise registrations are gamed. It could be that 30%, or even 50% of sunrise registrations are gamed, given the various blog posts and examples provided to this mailing list already (and how many others might exist "under the radar", that some folks are trying to keep hidden due to the lack of transparency of the TMCH).
Consider a "thought experiment" as to what would happen if Sunrise registrations and the TMCH were eliminated. Those 130 registrations would shift to either landrush or to general availability.
For those who are "gaming" the sunrise, they'd now be on an equal footing as everyone else.
For those legitimate TM holders, they can either register in landrush (or general availability), *or* they have curative rights protection mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if* domains which conflict with their TM rights are registered by someone else and misused.
I could even support a "hybrid" (horse trading, as Phil called it yesterday) model, where landrush imposed **additional burdens** on registrants, e.g. paying costs if they lose a UDRP), but then that extra burden is eliminated during general availability (as it is today). This way, TM holders and legitimate end users who don't have trademarks but have non-conflicting uses, etc. are on equal footing during a landrush.
I think many people are overly protective of the TMCH & sunrise period not because it's "working", but because it's an opportunity for extra consulting, revenue streams, etc. e.g. lawyers can tell their clients "get registered", and they can make money from the filing fees, etc. There's a huge amount of money being wasted, in my voice, that can be redirected to other things (like curative rights, better education, etc.).
Suppose that of the 130 sunrise registrations, half of them got registered by legitimate TM owners in landrush. Of the 65 that were registered by someone else, how many of those would actually be cases of cybersquatting? I would suggest it's a small number, given the overall stats of UDRPs relative to registrations. Even if it was a massive 2% (actual percentage is much, much lower), that might mean 1 extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might mean an extra 250 UDRPs per year. That's a relatively negligible amount.
If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees) is $5,000 or so, that's $1.25 million/yr.
TMCH revenues, by contrast, are on the order of $5 million/yr for Deloitte. And perhaps another $5 million or more per year for all the TM agents, etc. filing on behalf of clients. Let's call it $10 million+ for TMCH-related fees on those using that system.
Trading $10 million/yr in "preventive" costs for $1.25 million/yr in "enforcement" costs -- that's a no-brainer for TM holders.
And if, as I argued above, if some of those UDRP enforcement costs are shifted to the losers (for landrush registrations), then the economics are even that much stronger for the elimination of the sunrise period (since that $1.25 million becomes even lower, due to cost recovery).
And of course, a system that has no landrush definitely benefits ordinary registrants and prospective registrants who simply want a "good" name, or at least a fair chance at one, and don't want to see "THE" or "FLOWERS" or "HOTEL" or all of the other common words being grabbed in sunrise.
Processes would be simplified for registry operators and registrars, if sunrises and TMCH were eliminated, which saves them money (which gets passed along as savings for consumers). TLDs would launch faster, too. The best second-level strings would be "spread around" more, which is probably a good thing (except to some who feel, wrongly, that they have exclusive rights to common dictionary terms, etc., which is not something the law supports).
So, I hope folks will give serious consideration to what would happen if sunrise was completely eliminated. With a few small tweaks (as noted above), it could be much better than we have for most people (except for those exploiting the current system).
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
P.S. I know I've not written much above about the TM Claims notice aspect of the TMCH, but those are obviously have a chilling effect, with a 96%+ abandonment rate of registrations. A 90 day claims notice, which determined cybersquatters are going to ignore anyway, simply confuses legitimate registrants. The "ongoing notifications service" aspect of the TMCH is available through other companies, e.g. DomainTools or other domain monitoring services.
P.P.S. Some might argue that you can never collect $5K from registrants if they lose a UDRP. Shift some of that to the registrar, who can then police their own clients, a sort of "know your client" rule for those participating in landrushes. One can even envision a system of insurance, so that those who are involved in risky domain name registrations pay higher "insurance" (to indemnify their registrars) than less risky registrants who don't engage in cybersquatting. Or require a deposit at the start of the UDRP process (if one side doesn't post a deposit, they'd be in default). _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
-- jonathan matkowsky, vp - ip & head of global brand threat mitigation
participants (8)
-
George Kirikos -
Greg Shatan -
J. Scott Evans -
jonathan matkowsky -
Nahitchevansky, Georges -
Paul Keating -
Reg Levy -
Thomas, Christopher M.