[Gnso-rpm-trademark] REMINDER - Proposed Agenda - RPM PDP WG TM Claims Sub Team - 27 March 2019

[George Kirikos]

Just to build on Rebecca's comment, we can create a mathematical model
to understand things more easily, and try to transform the
"descriptive" analysis into a more quantitative analysis.

The overall abandonment rate (93.7% actual data from the Analysis
Group report) really represents a blended rate consisting of 2
separate rates, namely the abandonment rate for cybersquatters, and
the abandonment rate for good faith registrants (unproblematic domains
like "cloud" or "hotel" or "one"). It's a weighted average of those 2
different abandonment rates, and we're not sure what the true
"weights" should be.

So, let's define some variables. Let:

C = percentage of cybersquatting registration attempts
G = good faith / unproblematic registration attempts
P = abandonment rate for cybersquatting registration attempts
presented with the TM Claims notices
Q = abandonment rate for good faith registration attempts presented
with the TM Claims notices
R = overall abandonment rate (blended rate, a weighted average)

It should be clear that:

CP + GQ = R

It's also true that  C + G = 100% = 1.000 = 1, so let's simplify the
above even further

C + G = 1 ----> G = 1 - C

CP + (1-C)Q = R

Let's go even further, and isolate our attention on "Q", which is
essentially collateral damage of the TM Claims system. A high value of
Q means a high abandonment rate for good faith registration attempts.
Rearranging the above equation:

Q = (R - CP) / (1-C)

So, as "P" increases, then Q decreases, which should be obvious, since
we're doing a weighted average of 2 different rates. Let's imagine a
"best case" scenario, where P is the highest possible value, namely
100% ( = 1.0000), which would minimize the value of Q. That means 100%
of cybersquatting attempts are thwarted by the TM Claims notices! The
above equation becomes:

Q = (R - C) / (1-C)

Of course we know what R is empirically, the 93.7% figure from the
Analysis Group report (0.937). Thus, we can simplify even futher:

Q = (0.937 - C) / (1 - C)

Let's try different values of "C" (percentage of cybersquatting
attempts) to see what that implies about the value of Q in this best
case scenario:

C = 10% = 0.10   -----> Q = 0.93 = 93%
C = 20% = 0.20   -----> Q = 0.92125 = 92.125%
C = 30% = 0.30   -----> Q = 0.91 = 91%
C = 40% = 0.40   -----> Q = 0.895 = 89.5%
C = 50% = 0.50   -----> Q = 0.874 = 87.4%
C = 60% = 0.60   -----> Q = 0.8425 = 84.25%
C = 70% = 0.70   -----> Q = 0.79 = 79%
C = 80% = 0.80   -----> Q = 0.685 = 68.5%
C = 90% = 0.90   -----> Q = 0.37 = 37%

The above figures should be startling. And remember, these are the
*best case* scenarios. If it turns out that P, the abandonment rate
for cyberquatters, is less than 100%, then the values calculated for Q
(abandonment rate for good faith registration attempts) would become
even higher. Indeed, because it's a weighted average, if P turns out
to actually be lower than 93.7% (i.e. hardcore cybersquatters are
ignoring the TM Claims notices, and proceeding to registration), then
that means *all* the values above for Q would have to be *higher* than
93.7% (and that would put constraints/bounds on the value of "C",
otherwise one would generate impossible values of Q that exceed 100%).

But wait, there's more! What's a realistic value for "C"? That's a
critical value....do we have any evidence as to what percentage of
registration attempts are problematic//cybersquatting, vs. those that
are made in good faith and non-problematic? We do! We have the top 10
most frequently requested strings as per the analysis report, which
Rebecca referenced, ALL of which were common terms like "ONE" or
"HOTEL" or "CLOUD" which have multiple legitimate and non-infringing
uses. (We also know that the number of domains disputed via a URS or
UDRP is also small) Thus, we can infer from that empirical data that
the value of "C" is not close to 100%, but is closer to 0%. That
implies that the collateral damage, even in the best case scenario
with 100% effectiveness of TM claims notices on cybersquatting
registration attempts, swamps the possible benefits of the TM Claims
notices.

Sincerely,

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

On Tue, Mar 26, 2019 at 1:31 PM Tushnet, Rebecca
<rtushnet at law.harvard.edu> wrote:
>
> I was unable to attend the Kobe meeting, so I wanted to post my view on the first tentative answer:
>
> QUESTION 1 Is the Trademark Claims service having its intended effect?
>
>
> (a) Is the Trademark Claims service having its intended effect of
> deterring bad-faith registrations and providing Claims Notice to domain
> name applicants?
>
> Tentative answer of Subteam in Kobe session:  Probably
>
> RT: We don't have enough information to make any kind of judgment about this.  It might be a deterrent, if you believe that cybersquatters can be deterred by a notice, but we have collected zero data that indicate that this is true.
>
> Where data are absent: (1) what percentage of registration attempts that received a notice turned back because of the notice, with a huge potential range; (2) what percentage of registration attempts that received a notice were “cybersquatting” or even “inadvertent trademark conflict” as opposed to completely unproblematic uses of strings like cloud and hotel; (3) whether the cohort that turned back was (a) proportionate to the problem intended to be solved, (b) disproportionately made of cybersquatters or other potential infringers, or (c) disproportionately made of legitimate potential registrants (since we have no data on what deters cybersquatters nor any other information about how people who intend to cybersquat respond to notices); (4) whether the absolute number or relative percentage of cybersquatting attempts changed when there was no longer a notice in place (as a change in behavior post-notice period, or its absence, could have provided relevant evidence); (5) we have no data about what the general incidence of cybersquatting in the new gTLDs is in the first place, whether in absolute terms or as compared to legacy gTLDs without the notice system.  In sum, there is evidence that notice may increase costs and deter registrations, but no evidence about what those registrations would have been in the absence of notice.
>
>
> At best, it is "possible" that the Claims service is having its intended effect. There is insufficient evidence that this effect is "probably" happening.
>
>
>
>
>
>
> Rebecca Tushnet
> Frank Stanton Professor of First Amendment Law, Harvard Law School
> 703 593 6759