[Gnso-rpm-sunrise] [Discussion Thread] Sunrise Q9
Kathy Kleiman
kathy at kathykleiman.com
Wed Jun 12 18:09:45 UTC 2019
I think we are agreeing, Phil. I thought you were saying there was a
remedy to the problem Michael is trying to solve in the registration
process (per your words below).
But there is clear gaming -- in the Analysis Group Report and many
online articles... a problem we might still solve with narrowly-tailored
solutions.
Best, Kathy
On 6/12/2019 1:59 PM, Corwin, Philip wrote:
>
> Kathy:
>
> Sunrise registrations are not restricted to famous or well known
> remarks, but are available to any trademark that has met the
> recordation requirements for the TMCH and has also demonstrated use in
> commerce.
>
> I have already explained at length why, in my personal view, the low
> levels of average sunrise registrations in new gTLDs do not provide
> evidence of substantial abuse, much less suppression of free speech,
> sufficient to justify restrictive criteria that would necessitate
> complex decisions and evaluative criteria, including an appeals
> process, to be effective and fair.
>
> Best, Philip
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" -- Branch Rickey/
>
> *From:*Kathy Kleiman <kathy at kathykleiman.com>
> *Sent:* Wednesday, June 12, 2019 12:25 PM
> *To:* gnso-rpm-sunrise at icann.org; Corwin, Philip <pcorwin at verisign.com>
> *Subject:* [EXTERNAL] Re: [Gnso-rpm-sunrise] [Discussion Thread]
> Sunrise Q9
>
> Hi Phil,
>
> I've been puzzling over this for awhile, so let me write before our
> meeting today. The TMCH registration involved in gaming, including
> THE, CHRISTMAS, PEN, and most upsettingly CLOUD (since it represents
> an entire sector of services) - gaming examples covered by reporters
> -- appear to be legitimate trademarks. They are registered somewhere
> and in some category of goods and services. Thus, I don't see how "the
> standards for mark recordation in the TMCH" would impact its inclusion.
>
> The problem I thought we were puzzling over is the clear misuse of the
> Sunrise period. These are not famous marks, or even well known marks.
> From the reports, they appear to be registered solely to game the
> system and receive Sunrise registrations for valuable domain names far
> from any of their categories of goods and services (e.g., the many
> registrations in Sunrise for "THE"). I think we should all worry about
> this misuse of the Sunrise period -- trademark owners because they
> will be deprived of legitimate opportunities to register their
> trademarks as domain names in their chosen New gTLDs and noncommercial
> community because this removes ordinary words from registrations.
>
> I don't see how reviewing the standards for mark recordation solves
> this one... but the proposal seems narrowly-tailored to address the
> harms and not any legitimate trademark owners or trademark/Sunrise
> activity.
>
> Best, Kathy
>
> On 6/7/2019 1:18 PM, Corwin, Philip via Gnso-rpm-sunrise wrote:
>
> Thanks for your further response, Michael.
>
> Again, I do not perceive substantial abuse or incursion on free
> speech with the present system. A registrar review of the
> submitted rationale would likely be nothing more than a low speed
> bump before completion of registration in almost every instance.
>
> I look forward to working with you in reviewing the standards for
> mark recordation in the TMCH when we reach the next stage of our work.
>
> Best, Philip
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" -- Branch Rickey/
>
> *From:* Michael Karanicolas <mkaranicolas at gmail.com>
> <mailto:mkaranicolas at gmail.com>
> *Sent:* Wednesday, June 05, 2019 1:40 PM
> *To:* Corwin, Philip <pcorwin at verisign.com>
> <mailto:pcorwin at verisign.com>
> *Cc:* mitch at eff.org <mailto:mitch at eff.org>;
> gnso-rpm-sunrise at icann.org <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [EXTERNAL] Re: Re: Re: [Gnso-rpm-sunrise] [Discussion
> Thread] Sunrise Q9
>
> Hi Phil,
>
> /"Replying again in a personal capacity – if there are indeed
> widespread serious abuses of sunrise registrations taking place (
> a contention with which I do not concur) then I would think that
> proponents of that view would want a fairly rigorous review
> process to prevent them."/
>
> Personally, I would support a more robust ruleset, and if you
> recall, when I first raised this issue, I did suggest a stricter
> standard. This proposal came about as a result of the objections
> that were raised then. I understand that compromise can be
> necessary, so I attempted to respond to the substance of these
> objections by narrowing the proposal, and crafting it in a manner
> which is minimally intrusive to legitimate registrations and
> easier to implement while still addressing egregious cases, as an
> attempt to generate enough support to get something done to
> address the problem.
>
> /"But let me ask you this – I presume that if your proposal was
> adopted that rights holders seeking to complete sunrise
> registrations in vertical gTLDs that referenced a category if good
> or services would need to submit a statement explaining how the
> gTLD string related to goods and services associated with their
> marks./
>
> /So if Mini applied for mini.bike and submitted a statement that
> this related to their offerings of bikes and bike accessories
> <https://www.shopminiusa.com/MINI-LIFESTYLE/GIFTS-AND-GOODIES/BIKES> at
> what point in the registration process would that be submitted and
> what entity would evaluate it?/
>
> /Similarly, if Nike applied for Nike.bike and submitted a
> statement that this was based upon their offerings of bike shorts
> <https://www.nike.com/w?q=women%E2%80%99s%20bike%20shorts&vst=bike> –
> same question?/
>
> While I am open to discussion on implementation, I think that the
> most practical way to handle this would be for the registrar to do
> it at the point of sale. Again - similar to the way ccTLD
> residency checks and the .bank reviews work, but simpler. They
> could take a fast look at the statement (re: offerings of bikes or
> whatever), and then keep a record of the response. If there were
> questions later (from the registries or pursuant to a SDRP
> perhaps) the registrars could share the information. Again - I
> would be open to suggestion, if you think an alternative structure
> would be more efficient.
>
> Best,
>
> Michael
>
> On Wed, May 29, 2019 at 3:09 PM Corwin, Philip
> <pcorwin at verisign.com <mailto:pcorwin at verisign.com>> wrote:
>
> Michael:
>
> Replying again in a personal capacity – if there are indeed
> widespread serious abuses of sunrise registrations taking
> place ( a contention with which I do not concur) then I would
> think that proponents of that view would want a fairly
> rigorous review process to prevent them.
>
> But let me ask you this – I presume that if your proposal was
> adopted that rights holders seeking to complete sunrise
> registrations in vertical gTLDs that referenced a category if
> good or services would need to submit a statement explaining
> how the gTLD string related to goods and services associated
> with their marks.
>
> So if Mini applied for mini.bike and submitted a statement
> that this related to their offerings of bikes and bike
> accessories
> <https://www.shopminiusa.com/MINI-LIFESTYLE/GIFTS-AND-GOODIES/BIKES>
> at what point in the registration process would that be
> submitted and what entity would evaluate it?
>
> Similarly, if Nike applied for Nike.bike and submitted a
> statement that this was based upon their offerings of bike
> shorts
> <https://www.nike.com/w?q=women%E2%80%99s%20bike%20shorts&vst=bike>
> – same question?
>
> Thanks, Philip
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" -- Branch Rickey/
>
> *From:* Michael Karanicolas <mkaranicolas at gmail.com
> <mailto:mkaranicolas at gmail.com>>
> *Sent:* Wednesday, May 29, 2019 1:37 PM
> *To:* Corwin, Philip <pcorwin at verisign.com
> <mailto:pcorwin at verisign.com>>
> *Cc:* mitch at eff.org <mailto:mitch at eff.org>;
> gnso-rpm-sunrise at icann.org <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [EXTERNAL] Re: Re: [Gnso-rpm-sunrise] [Discussion
> Thread] Sunrise Q9
>
> Obviously, I'm not proposing "letting all proposed
> registrations get in". I just noted that, in the cases that
> you mentioned, I wouldn't see a problem. You bring up geo
> names - which I'm not sure would even be included under this
> proposal since it's only meant to apply to categories of goods
> - but if they did, I would not argue for requiring a physical
> presence there. I'm not sure I fully follow your second
> question with regard to "the gTLD vertical" - but again, I'm
> happy for the broader and more inclusive approach.
>
> The point of a low bar assessment is to target obvious cases
> of abuse, or a clear disconnect between a trademark and the
> domain under request, but to provide for minimal impairment of
> legitimate registrations, while minimizing all the
> administrative costs that you keep trying to build in by
> keeping the assessment relatively inclusive.
>
> On Wed, May 29, 2019 at 2:19 PM Corwin, Philip
> <pcorwin at verisign.com <mailto:pcorwin at verisign.com>> wrote:
>
> Michael:
>
> Again, speaking in a personal capacity – I must say I am
> confused by your response.
>
> You say “The evidence that the system is open to abuse,
> and that abuse has taken place, has been amply
> demonstrated, and it follows that if we take no action the
> system will likely continue to be abused.”, but then you
> say, “I'm generally fine letting them all in. As I said -
> a low bar assessment, just to make sure the system isn't
> being obviously abused.”
>
> If you believe that significant abuse has and will take
> place, then how does letting all proposed registrations
> get in under a low bar assessment address the problem you
> perceive?
>
> Best, Philip
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" -- Branch Rickey/
>
> *From:* Michael Karanicolas <mkaranicolas at gmail.com
> <mailto:mkaranicolas at gmail.com>>
> *Sent:* Wednesday, May 29, 2019 1:06 PM
> *To:* Corwin, Philip <pcorwin at verisign.com
> <mailto:pcorwin at verisign.com>>
> *Cc:* mitch at eff.org <mailto:mitch at eff.org>;
> gnso-rpm-sunrise at icann.org <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [EXTERNAL] Re: [Gnso-rpm-sunrise] [Discussion
> Thread] Sunrise Q9
>
> Hi Phil,
>
> I appreciate you taking the time to look up the Wikipedia
> entries for so many different languages, but if your
> purpose was to make the case that there are a lot of
> different words out there, I'm not sure you needed to
> bother with the effort. I will concede that point.
>
> But if your underlying argument is that none of this
> matters because there's so many words still available, and
> one is just as good as another because domain names don't
> really matter much... Well - what are we all doing here?
>
> Seriously - why do people spend tens of millions of
> dollars on a domain name if one is as good as another? Why
> did Amazon just spend god-knows how much time and money
> trying to secure .Amazon, when they could have just
> shifted over to .AmazonCorp or .TheAmazonCompany if those
> are just as good and would have spared them the fight? The
> answer, as we all know, is that while there's lots of
> words in the English language, they're not all
> interchangeable, and some letter strings are better than
> others in conveying an idea. And this is why the
> registration of incredibly common words, ostensibly for
> the purpose of trademark protection. is so troubling,
> because it carves off a space that could, and likely
> would, be utilized for a legitimate purpose just because
> it has a tangential relation to an existing mark. The
> evidence that the system is open to abuse, and that abuse
> has taken place, has been amply demonstrated, and it
> follows that if we take no action the system will likely
> continue to be abused. If we just ignore this issue, which
> is fairly glaring, I think it will lead to problems down
> the line, as the working group seeks approval for its
> broader recommendations.
>
> I agree that we need to work towards implementable
> guidelines, but I don't agree that it's the sort of
> insurmountable obstacle you are making it out to be,
> particularly if we adopt a relatively low bar, as I've
> been saying all this time. I believe you, in a previous
> post, spoke of "overkill" and a "needlessly complicated"
> solution - but you're the one pushing the proposal in this
> direction. I, personally, don't think the assessment needs
> to be done by a "neutral third, non-contracted party", and
> as to your other examples - I'm generally fine letting
> them all in. As I said - a low bar assessment, just to
> make sure the system isn't being obviously abused.
>
> Best,
>
> Michael
>
> On Wed, May 29, 2019 at 12:25 PM Corwin, Philip via
> Gnso-rpm-sunrise <gnso-rpm-sunrise at icann.org
> <mailto:gnso-rpm-sunrise at icann.org>> wrote:
>
> This response is in a personal capacity.
>
> First, I would note that the standard for a proposal
> to be included in the Initial Report for the purpose
> of soliciting public comment is strong support within
> the sub team and subsequently the full WG. I do not
> perceive Michael’s proposal to limit sunrise
> registrations in at least vertical gTLDs to those
> related (a term that requires significant definition)
> to the goods and services to which a mark has been
> registered as having received that level of support.
> Indeed, I believe the sub team has become more divided
> on it as discussion has proceeded. (Of course, the sub
> team’s consideration of the proposal will, if my
> perception of support level is borne out, still be
> noted in the Initial Report and anyone will be free to
> comment upon it; it simply will not be endorsed
> proposal on which the ICANN community is specifically
> invited to comment.)
>
> Second, I have stated my belief that, especially with
> higher sunrise pricing being a gating factor, rights
> holders have been judicious in their use of sunrise
> registrations. The fact that sunrise registrations
> have only averaged 150-200 per new gTLD documents that
> very selective use, and provides no evidence of
> significant abuse. (As for questionable marks being
> registered, that is a subject for review in our next
> and final phase, when we focus back on and conclude
> recommendations on the TMCH, including the
> requirements for recording a mark.)
>
> Third, as we seem to be engaged in mathematical
> analysis, consider that according to the Oxford
> English Dictionary
> <https://en.oxforddictionaries.com/explore/how-many-words-are-there-in-the-english-language/>,
> “there are, at the very least, a quarter of a million
> distinct English words, excluding inflections, and
> words from technical and regional vocabulary not
> covered by the /OED/, or words not yet added to the
> published dictionary, of which perhaps 20 per cent are
> no longer in current use. If distinct senses were
> counted, the total would probably approach three
> quarters of a million”. Wikipedia
> <https://en.m.wikipedia.org/wiki/List_of_dictionaries_by_number_of_words>,
> for its part, notes that the 5^th edition of the
> American Heritage Dictionary of the English Language
> contains more than 370,000 words. English of course is
> not the only language written in ASCII characters (and
> therefore not IDNs) – again according to Wikipedia,
> German has 330,00 words, Italian 260,000, French
> 135,000, Spanish 93,000, Portuguese 442,000, and so on.
>
> But sticking just to English, if we conservatively
> estimate that there are 300,000 distinct dictionary
> words, then even an average sunrise registration
> total of 200 words per new gTLD leaves 299,800
> available to register by anyone (and that doesn’t
> include made up, non-dictionary words). Out of 300,000
> available words, 200 represents less than 1/10^th of
> one percent. So the burden of sunrise registrations on
> the availability of dictionary words as domain names
> is infinitesimal as, for English alone, 99.9% of all
> dictionary words remain available for general
> registration.
>
> Fourth, the speech embodied in a domain name is
> minimal at best. Domain names function primarily as an
> Internet address, with an expressive function being
> secondary. Most domain names consist (and the ones we
> are discussing do so entirely) of a single term
> separated by a dot from the gTLD string label. Not
> much meaningful speech is made up of just one word
> plus a gTLD designation (e.g., ride.bike).
>
> Fifth, the domain platform is the primary space in
> which meaningful speech is expressed, and a sunrise
> registration leaves ample (indeed, almost unlimited)
> latitude for those who do not possess trademark rights
> to engage in unfettered speech. The proposal under
> discussion cited as an alleged “abuse” BMW’s sunrise
> registration of mini.bikes. But that registration
> still leaves available a vast number of .bike domains
> that include the word mini to serve as platforms for
> meaningful speech – including minis.bike,
> miniraces.bike, minisafety.bikes, minifans.bike,
> minikids.bike, minidirt.bike, and on and on. So the
> availability of sunrise registrations has essentially
> no censorship effect on free speech.
>
> Sixth and most importantly, even if one agrees with
> the proponents of the proposal (which I do not) that
> there is some problem in need of a solution, they have
> failed to describe any practical means by which the
> proposal would be uniformly and effectively
> administered, or estimated what such a process would
> cost. While there is no requirement to develop a full
> implementation plan until after a proposal receives
> consensus support, there should at least be some
> general description of what administration will entail
> (and I must say that I do not find statements such as
> “it’s easy” or “during the registration process” to be
> very convincing or assuring). If the proponents truly
> believe there is a significant problem to be redressed
> then they would want their solution to be administered
> in an objective, uniform, and effective manner by a
> neutral third, non-contracted party (noting also that
> registries and registrars would have commercial
> incentives to accept almost any rationale provided by
> a rights holder for a proposed domain registration). A
> standard policy will have to be developed that
> wrestles with such questions as whether a rights
> holder wishing to register in a geo domain must
> maintain a physical facility in the locale, or whether
> demonstrating sales in the location is sufficient; and
> whether “related to” is to be narrowly defined to
> require that the rights holder have registrations for
> goods and services that directly coincide with the
> gTLD vertical, or whether it is sufficient to simply
> supply goods and services that are employed by those
> engaged in activities described by the vertical (the
> first would bar nike.bike, the second would allow it).
> And of course there must be some appeals process for
> those rights holders who believe they have been
> improperly barred from making a valid sunrise
> registration – and who will administer that, and what
> standard will it employ?
>
> Given the overall failure to describe any demonstrable
> and consistent abuse or significant impingement of
> speech by actual sunrise registartions, as well as the
> lack of even a general outline of a credible
> implementation model with reasonable costs and
> manageable rules, I cannot support the proposal.
>
> Thanks to all for your consideration of these personal
> views.
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" -- Branch Rickey/
>
> *From:* Gnso-rpm-sunrise
> <gnso-rpm-sunrise-bounces at icann.org
> <mailto:gnso-rpm-sunrise-bounces at icann.org>> *On
> Behalf Of *Mitch Stoltz
> *Sent:* Tuesday, May 28, 2019 8:53 PM
> *To:* gnso-rpm-sunrise at icann.org
> <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [EXTERNAL] Re: [Gnso-rpm-sunrise]
> [Discussion Thread] Sunrise Q9
>
> Hi Claudio,
> According to your numbers, trademark holders have
> registered between 105,000 and 140,000 domains that
> were never available to noncommercial users. You and
> others suggest that most of these registrations were
> “defensive,” meaning that they were done primarily to
> prevent anyone else from registering those domain
> names - not to use them. What’s more, given the little
> we know about what marks are in the TMCH, a great many
> of those domain names are either commons words, or
> words that are associated with a product or service
> ONLY in particular contexts. This represents an
> enormous loss to the public that will only grow as new
> gTLDs roll out.
>
> I take issue with your suggestion that noncommercial
> users can simply choose a different domain name that
> hasn’t been taken by trademark holders before public
> availability. For a noncommercial user, the expressive
> value of a domain name can be equal to or greater than
> its value to a commercial user. A noncommercial user
> acting in good faith should have equal opportunity to
> register a domain.
>
> Yes, rightsholders can choose to register domains in
> sunrise based on their internal calculus about where
> "abuse" is likely to happen, but they are also
> currently free to act as though good faith
> registrations by noncommercial users are "abuse."
> That's a fundamental flaw in the Sunrise mechanism. At
> a minimum, Michael Karanicolas's proposal to limit
> sunrise registrations based on the goods and services
> actually sold by the rightsholder would begin to
> address this.
> Best,
> Mitch
>
> Mitch Stoltz
>
> Senior Staff Attorney, EFF | 415-436-9333 x142
>
> https://www.eff.org/donate |https://act.eff.org/
>
> On 5/22/19 8:46 PM, claudio di gangi wrote:
>
> hi Mitch,
>
> Sunrise registrations have averaged between 150
> and 200 domains per TLD.
>
> I believe there over 700 different new gTLDs where
> non-commercial users can register domains for
> non-commercial use.
>
> For the purposes of consensus-building, when one
> does the math, can you kindly clarify on how this
> results with harms falling disproportionately on
> non-commercial registrants and small business
> registrants?
>
> In terms of the orthogonal domains you mention,
> registration abuse that targets a brand can easily
> take place in these zones (and often does take
> place). Isn’t this a standing justification, along
> within the fact that only 150 to 200 domains are
> registered during Sunrise per TLD, for having
> Sunrise in place in to prevent consumer confusion
> and harm from taking place?
>
> In terms of the question of scale that your
> mention, I don’t see a necessary inconsistency
> that should raise alarm.
>
> One on hand, the brand owner is making an informed
> choice about where to protect their brand, often
> because they have been previously targeted and
> they recognize a pattern, or due to some other
> implicit connection with the brand that made not
> be readily apparent to an outside observer on the
> surface.
>
> But for the vast majority of cases, defensive
> registrations are based on strategic factors, such
> as the likelihood of infringement in a particular
> TLD. I do consider this as resulting in ex-ante
> harm to non-commercial registrants, as for one
> reason there are virtually an unlimited number of
> registrations available in nearly a 1000 gTLDs. To
> take an extreme case, even in .com with nearly 140
> million domains registered, successful domainers
> continue to profit and non-commercial users have
> meaningful choices for expression.
>
> Thanks in advance for your thoughts.
>
> Best regards,
>
> Claudio
>
>
>
> On Wednesday, May 22, 2019, Mitch Stoltz
> <mitch at eff.org <mailto:mitch at eff.org>> wrote:
>
> This working group has hit on numerous
> problems with the Sunrise regime, with harms
> falling disproportionately on non-commercial
> and small business registrants. Michael K. has
> proposed a narrow solution to one of these
> problems, and I think it deserves serious
> consideration.
>
> Quite simply, Sunrise as it exists is an
> expansion of trademark rights. Allowing
> priority registration without regard to the
> actual goods and services to which a mark
> pertains turns a trademark from a source
> identifier into a global dominion over a word
> or phrase. We have ample evidence that Sunrise
> is being abused in just that way. Looking
> beyond obvious abuses, there is little or no
> justification for giving trademark holders
> priority registration in TLDs that are clearly
> orthogonal to any product or service the
> mark-holder offers.
>
> At scale, having that priority absolutely
> harms the free expression rights of others. To
> use a simple example, Apple is a distinctive
> trademark in consumer technology but a generic
> word in many other circumstances. There are
> any number of individuals and organizations
> who should be able to express themselves with
> a domain name containing Apple, in ways that
> raise no possibility of trademark infringement
> or cybersquatting. All of these potential
> users should have equal opportunity to
> register "apple" in new TLDs that don't raise
> an association with technology products.
>
> Moreover, we need to be consistent about
> questions of scale. If sunrise registrations
> are used often enough to provide benefit to
> trademark holders, then they are also being
> used often enough to interfere with the rights
> of noncommercial users. And if they are not
> used very much at all, then we should be
> jettisoning the program as unnecessary. If
> Sunrise is to continue, Michael's proposal is
> a straightforward way of making it conform to
> the actual legal rights it's meant to protect.
>
> Mitch Stoltz
>
> Senior Staff Attorney, EFF | 415-436-9333 x142
>
> https://www.eff.org/donate |https://act.eff.org/
>
> On 5/15/19 8:09 AM, Kathy Kleiman wrote:
>
> Hi Phil,
>
> As a co-chair, I'm a little surprised by
> the vehemence of the debate. Many of us
> are lawyers and we're used to talking
> about important issues in dispassionate
> ways. I think we should do so here.
>
> As an ordinary member, I participate in
> these discussions, as you and Brian do,
> and in that capacity, I note that we have
> a problem. I also see the seeds of the
> solution in your answer below.
>
> In 2009, we foresaw that there might be
> gaming of the Sunrise period -- people
> registering trademarks for ordinary words
> to get priority during Sunrise. We now see
> it happening. Journalists, reporters and
> bloggers have done the work for us -- and
> no one seems surprised by their results.
> I list some of the articles we (as a
> Subteam) collected below. Links in our
> Sunrise Summary Table under Q9 -
> https://community.icann.org/download/attachments/102138618/%5BSunrise%20Summary%20Table%5D%20%2816%20April%202019%29.pdf?version=1&modificationDate=1555515624235&api=v2
>
> Nothing in the MK proposal is burdensome,
> or unusual. It's narrowly-tailored (too
> narrowly-tailored in my view) to prevent
> gaming and to use systems already in place.
>
> As you note below, the cost of the vetting
> is part of the process for many gTLDs and
> ccTLDs -- whether it is providing
> residency in Japan or the objective
> standard for .bank or .insurance or
> .attorney or .cpa. It's already built into
> our processes -- and not burdensome -- and
> easily extended to Sunrise.
>
> We know there is a misuse and even abuse
> of the Sunrise system. The MK proposal is
> an easy fix, and one that actually
> protects and preserves the balance of
> rights. We are being asked to solve
> problems -- and this is a big one.
>
> Best, Kathy
>
> *Articles in our gathering data (links in
> Summary Table):*
>
> *● How one guy games new gTLD sunrise periods
> ● Fake Trademarks Stealing Generic Domains
> In New gTLD Sunrises
> ● The Trademark ClearingHouse Worked So
> Well One Company Got 24 new gTLD using The
> Famous Trademark “The"
> ● How common words like Pizza, Money, and
> Shopping ended up in the Trademark
> Clearinghouse for new TLDs
> ● The numbers are in! Donuts sunrises
> typically get 100+ domains, but they also
> got gamed
> ● Digging in on Donuts’ Sunrise: Amazon
> tops the list, gaming, and top registrars
> ● .Build Registry Using Questionable Swiss
> Trademark Registration To Grab “Build”
> Domains In Sunrise
> ● How Did RetailMeNot Get 849 .Codes
> Domains In Sunrise Without AnyTrademarks?
> *
>
> On 5/15/2019 10:10 AM, Corwin, Philip wrote:
>
> Kathy:
>
> I presume that these are your personal
> views, just as the email I posted last
> week raising serious doubts about
> Michael’s proposal were clearly
> labeled as personal. Likewise, what
> follows is an expression of personal
> views.
>
> Not to repeat myself, but to the
> extent there is gaming based on weak
> marks it should be a focus of
> discussion when we review requirements
> for mark recordation in the TMCH. But
> I have seen no substantial evidence
> that legitimate trademark holders are
> seeking to utilize sunrise
> registrations in gTLDs other than
> those for which they have a good faith
> belief that registration is necessary
> for brand protection. Even where a
> sunrise registration might arguably be
> abusive, I do not see that as placing
> any burden on the speech rights of
> others who wish to register a domain
> name that bears some resemblance.
>
> I also described why I believe
> adoption of this proposal will require
> a costly bureaucracy to yield
> reasonably consistent applications of
> what will always be a subjective
> standard subject to interpretation. I
> do not see this as the same as the
> objective standard for a .bank or
> .insurance domain (where the cost of
> vetting is built into the registration
> fee, and the requirement is satisfied
> by furnishing a certificate evidencing
> that the applicant is a regulated
> institution) or even ccTLDs, where
> some have objective criteria to
> demonstrate being domiciled or doing
> business in a particular jurisdiction.
> While I don’t believe that Michael has
> the responsibility to provide a
> full-blown implementation scheme, I
> have not yet heard a credible
> explanation of how adoption of a
> relationship test will be consistently
> administered in a cost-effective way.
>
> Finally, and more broadly, we are in
> the process of considering proposals
> to recommend to the full WG for
> inclusion in the Initial Report for
> public comment. While that does not
> require a demonstration of consensus
> at this point, it should require some
> reasonably strong support within the
> sub team and, following that, the WG;
> and some prospect that the proposal
> can achieve consensus down the road
> within the WG (for the Final Report)
> and Council. Frankly, I don’t see that
> reasonably strong support for
> Michael’s proposal within the sub team
> but rather a sharp divide over whether
> there is even a problem that requires
> addressing. And, while I have no
> crystal ball, I feel reasonably
> confident that in the end contracted
> parties will oppose it for
> administrative and cost reasons, among
> others, and that BC and IPC members
> will oppose it as putting yet another
> burden on sunrise registrations – so I
> don’t see any prospect of consensus.
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0A++++++++++++++++Reston,+VA+20190&entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
> /"Luck is the residue of design" --
> Branch Rickey/
>
> *From:* Gnso-rpm-sunrise
> <gnso-rpm-sunrise-bounces at icann.org>
> <mailto:gnso-rpm-sunrise-bounces at icann.org>
> *On Behalf Of *Kathy Kleiman
> *Sent:* Wednesday, May 15, 2019 9:04 AM
> *To:* gnso-rpm-sunrise at icann.org
> <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [EXTERNAL] Re:
> [Gnso-rpm-sunrise] [Discussion Thread]
> Sunrise Q9
>
> Hi All,
>
> I think the discussion is an important
> one because it is brings up issues
> across categories.
>
> a) Michael's proposal addresses a
> problem we have found in our
> data-driven analysis. There are gamers
> out there who are registering
> trademarks in a certain category of
> goods and services, and then using
> them to register an array of domain
> names in Sunrise having nothing at all
> to do with the categories of their
> trademark registration.
>
> We committed at the outset of the RPMs
> -- in the 2009 era - that we would not
> be expanding trademark rights. That's
> exactly what is happening in these
> situations and registrations.
>
> b) The SDRP is broken - barely used
> because the Trademark Clearinghouse
> was supposed to be public, during
> implementation it was turned private,
> so challengers cannot get the
> information they need to challenge.
> Plus, it's not the job a challenger to
> police the basic principle of the
> entire RPM process.
>
> Brian, you have mentioned your
> "suggested improvements to the SDRP"
> from 2 years ago several times, but
> that was 1000s of emails ago, and we
> worked hard to compile the data and
> solutions that we are looking at
> today. Per the rules that we agreed to
> as Co-Chairs and as a WG, we created a
> new table, atop extensive data
> gathering, and things must be
> reintroduced from prior to our URS
> break. If you could do so, that would
> be very timely.
>
> I've suggested changes to the SDRP
> that would give challengers some
> chance to use it -- although only for
> the narrow purpose intended. The SDRP
> was not intended to solve a broad
> gaming problem -- because we did not
> anticipate one. We know know it
> exists; and a policy/operational fix
> resolves it.
>
> c) Michael suggests a narrowly
> tailored solution for a gaming problem
> that we now know exists. His solution
> is completely consistent with how
> registrars, in many of these gTLDs,
> already handle General Availability
> (e.g., required proof to register in
> .BANK). It's not a new process -- just
> a way to use existing process to avoid
> gaming and preserve the principles we
> agreed to in this process.
>
> Best, Kathy
>
> On 5/9/2019 12:04 PM, BECKHAM, Brian
> wrote:
>
> Michael,
>
> I would personally prefer not to
> get into a Google search race for
> some kind of “exceptions to prove
> the rule” and also because
> “tattoos” is not a class of marks
> <https://trademark.eu/list-of-classes-with-explanatory-notes/>,
> but these articles could be of
> interest in terms of explaining
> why they may seek such a defensive
> sunrise registration:
>
> https://www.pinterest.ch/steelephotograp/mini-cooper-tattoos/
>
>
> https://metro.co.uk/2011/01/25/andreas-muller-has-mini-tattooed-on-penis-to-win-car-632961/
>
>
> Also, while MINI may not make
> motorcycles, their sister company
> BMW does, so they could well
> branch out into that product area
> (including related services).
>
> I have already suggested
> improvements to the SDRP on
> several occasions, going back
> almost 2 years now (those were
> apparently parked in preference of
> various data seeking exercises),
> so would respectfully suggest that
> others take the baton from here.
>
> As I said, I believe there is a
> genuine willingness to explore
> such solutions.
>
> At the same time, it seems
> unlikely that the current proposal
> No. 13 is likely to garner
> consensus, and will defer to the
> Sub Team Co-Chairs to address that
> at the level of our present
> discussions.
>
> Brian
>
> *From:* Michael Karanicolas
> <mkaranicolas at gmail.com>
> <mailto:mkaranicolas at gmail.com>
> *Sent:* Thursday, May 9, 2019 5:50 PM
> *To:* BECKHAM, Brian
> <brian.beckham at wipo.int>
> <mailto:brian.beckham at wipo.int>
> *Cc:* Ariel Liang
> <ariel.liang at icann.org>
> <mailto:ariel.liang at icann.org>;
> gnso-rpm-sunrise at icann.org
> <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* Re: [Gnso-rpm-sunrise]
> [Discussion Thread] Sunrise Q9
>
> Interesting, thanks for sharing. I
> checked whether Mini made
> motorcycles before I sent my
> proposal in... I didn't think to
> check whether they made regular
> bicycles!
>
> By any chance, were you able to
> find any examples of the company
> branching into the tattoo business
> as well (http://mini.tattoo)?
>
> I'm not sure if this presents a
> "nuance" in trademark classes. I
> don't think it's much of a
> revelation that "bikes" can refer
> to motorcycles or regular
> bicycles. All this represents is a
> product line I was unaware of. And
> under my proposal, all Mini would
> have to do would be to include the
> link you provided when they
> register the domain under sunrise,
> and that should be that.
>
> Personally, I don't see how the
> SDRP challenge process could be
> retooled to turn it into something
> that adequately represents the
> interests of potential future
> registrants without injecting
> massive amounts of transparency
> into the sunrise and TMCH
> processes... but I would be
> interested to hear your thoughts
> as to how this might work.
>
> On Thu, May 9, 2019 at 12:38 PM
> BECKHAM, Brian
> <brian.beckham at wipo.int
> <mailto:brian.beckham at wipo.int>>
> wrote:
>
> Thanks Ariel,
>
> Copying here, my full email to
> the Sunrise List from earlier
> today as it relates to
> proposal No. 13:
>
> --
>
> Thanks Julie,
>
> Just for fun (as I am aware
> the example was merely
> anecdotal), further to our
> hypothesizing last night,
> indeed, MINI does have a range
> of folding bikes:
>
> https://www.bmwblog.com/2018/02/28/new-mini-folding-bike/
>
>
> This does however illustrate
> in some ways the nuance in
> trademark classes and TLD
> typology that may escape
> proposal No. 13 in its current
> form.
>
> As I mentioned on our call, I
> believe there is a shared
> willingness to address the
> issue Michael has raised, but
> via the SDRP challenge
> process, and not via claims
> exclusions.
>
> Brian
>
> --
>
> Brian
>
> *From:* Gnso-rpm-sunrise
> <gnso-rpm-sunrise-bounces at icann.org
> <mailto:gnso-rpm-sunrise-bounces at icann.org>>
> *On Behalf Of *Ariel Liang
> *Sent:* Thursday, May 9, 2019
> 5:36 PM
> *To:*
> gnso-rpm-sunrise at icann.org
> <mailto:gnso-rpm-sunrise at icann.org>
> *Subject:* [Gnso-rpm-sunrise]
> [Discussion Thread] Sunrise Q9
>
> Dear Sunrise Sub Team members,
>
> As announced, this thread is
> being opened for final mailing
> list discussions related to
> *Sunrise Agreed Charter
> Question 9*, including
> *Proposal #13*.
>
> We ask that you review the
> *Summary Table* *(as of 16
> April 2019) *and provide any
> additional input you may have
> to the “*proposed answers &
> preliminary recommendations*”
> in relation to the Agreed
> Charter Question, and consider
> *draft answers *to the
> following questions regarding
> the individual proposal:
>
> a. Should the Sub Team
> recommend that the full WG
> consider including this
> Individual Proposal in the
> Initial Report for the
> solicitation of public comment?
>
> b. In light of the Individual
> Proposal, are any
> modifications to the current
> “tentative answers &
> preliminary recommendations”
> needed?
>
> c. Should any additional Sub
> Team recommendations be made
> in relation to the agreed
> Sunrise charter question?
>
> Unless the Sub Team Co-Chairs
> determine otherwise, this
> discussion thread will remain
> open until *23:59 UTC on 22
> May 2019*. Comments/input
> provided past the closing date
> or outside this discussion
> thread will not be taken into
> account when compiling the
> final Sub Team member input.
>
> *Summary Table (Pages 36-40)*
>
> The draft answers, preliminary
> recommendations, and links to
> the relevant individual
> proposals are in the latest
> Summary Table (as of 16 April
> 2019):
>
> https://community.icann.org/download/attachments/102138618/%5BSunrise%20Summary%20Table%5D%20%2816%20April%202019%29.pdf?version=1&modificationDate=1555515624235&api=v2.
>
>
> *Agreed Sunrise Charter
> Question 9 (Page 36)*
>
> The Sub Team just discussed
> Agreed Charter Question 9 on
> 08 May 2019, hence the
> proposed answers are “TBD”.
> Based on the Sub Team’s
> discussions, the transcript
> and notes, staff will provide
> update.
>
> /
> Q9 In light of the evidence
> gathered above, should the
> scope of Sunrise Registrations
> be limited to the categories
> of goods and services for which? /
>
> *_Proposed Answer_: *TBD
>
> *Individual Proposal*
>
> The Sub Team just discussed
> the Proposal #13 on 08 May
> 2019, hence there is no draft
> answer currently on the
> Summary Table (as of 16 April
> 2019). Based on the Sub
> Team’s discussions, the
> transcript and notes, staff
> will provide.
>
> Link to the individual
> proposal is included below.
>
> *Proposal #13*:
> https://community.icann.org/download/attachments/102146375/Proposal%2313.pdf?api=v2
>
>
> *Where to Find All Discussion
> Threads *
>
> Access the Documents wiki page
> and find the opening messages
> of the all discussion threads
> in the table (highlighted in
> green):
> https://community.icann.org/x/_oIWBg
>
>
> Best Regards,
>
> Mary, Julie, Ariel
>
> World Intellectual Property
> Organization Disclaimer: This
> electronic message may contain
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> this e-mail and all its
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>
> _______________________________________________
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