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

Kathy Kleiman kathy at kathykleiman.com
Wed Mar 27 15:53:50 UTC 2019 

Hi All, Quick note that we did invite people to continue the discussion 
of the last subteam meeting -- especially those who were unable to join 
us in Kobe -- so thanks for the discussion!

Kathy

On 3/27/2019 11:46 AM, Tushnet, Rebecca wrote:
> I’m not asking for answers. I’m pointing out that without those 
> answers (which would indeed be quite difficult to get) we can’t 
> honestly answer the basic question of efficacy one way or another.
>
> Rebecca Tushnet
> Frank Stanton Professor of First Amendment Law, Harvard Law School
>
> Sent from my phone. Apologies for terseness/typos.
>
> On Mar 27, 2019, at 11:35 AM, BECKHAM, Brian <brian.beckham at wipo.int 
> <mailto:brian.beckham at wipo.int>> wrote:
>
>> Just by way of reminder, I put an email on this list probably 2 years 
>> ago on abandonment rates. From a godaddy blog it was something like 
>> 70% on average. Speaking personally, I also feel it is not necessary 
>> or a good use of this group’s time to seek to answer 1-4 from Rebecca.
>>
>> Brian
>>
>>
>> Sent from my WIPO mobile
>>
>> On 27 March 2019 at 11:18:11 GMT-4, Corwin, Philip via 
>> Gnso-rpm-trademark <gnso-rpm-trademark at icann.org 
>> <mailto:gnso-rpm-trademark at icann.org>> wrote:
>>> Responding in a purely personal capacity, I find this mathematical 
>>> analysis problematic for two reasons.
>>>
>>> First, it posits that there are "2 separate rates, namely the 
>>> abandonment rate for cybersquatters, and the abandonment rate for 
>>> good faith registrants". But there was likely a third group that 
>>> might well have constituted a majority of non-completed 
>>> registrations -- parties who had no intention of ever registering a 
>>> domain but simply wished to test whether a particular mark had been 
>>> recorded in the TMCH.
>>>
>>> Second, we have no baseline abandonment rate for domain 
>>> registrations that do not generate a Claims Notice.
>>>
>>> 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
>>>
>>> -----Original Message-----
>>> From: Gnso-rpm-trademark <gnso-rpm-trademark-bounces at icann.org 
>>> <mailto:gnso-rpm-trademark-bounces at icann.org>> On Behalf Of George 
>>> Kirikos
>>> Sent: Wednesday, March 27, 2019 8:25 AM
>>> To: gnso-rpm-trademark at icann.org <mailto:gnso-rpm-trademark at icann.org>
>>> Subject: [EXTERNAL] Re: [Gnso-rpm-trademark] REMINDER - Proposed 
>>> Agenda - RPM PDP WG TM Claims Sub Team - 27 March 2019
>>>
>>> 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/ 
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMGaQ&c=WO-RGvefibhHBZq3fL85hQ&r=E-M4OQvQBo8UWqE1LwEiDR3PcWlfM0I-0jiI1c4ous0&m=rYudboF0Oc2n6ucf1_74XIJ2mpuRGCQAJDnVmoBto_A&s=B2lCIYnaCvNa1Mdt6ZTmjzgawRteRw-D57BZ0aRxlOk&e=>
>>>
>>> On Tue, Mar 26, 2019 at 1:31 PM Tushnet, Rebecca 
>>> <rtushnet at law.harvard.edu <mailto: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
>>> _______________________________________________
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