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

Thu Mar 28 15:47:11 UTC 2019

Apologies for not submitting the raw data/source in my statement.  I am going back through my files - but, frankly, I've been trying to limit files and may have erased my original documents.  (Failure of my "liberal education" mind).

That being said, the basis for my conclusion was a simple comparison of the proportion of Second Level Domains in the New gTLDS to those in the Legacy Domains, with the proportion of UDRP proceedings in the New gTLDs to those in the Legacy Domains.  Initially the proportions were virtually identical: 6/87.  However, when I removed the number of registrations in ccTLDs, the proportion of Second Level Domain registrations shifted to 13/87.

My math can always be corrected - and I will try to provide the source of my #s.

Michael R.

From: Tushnet, Rebecca [mailto:rtushnet at law.harvard.edu]
Sent: Thursday, March 28, 2019 5:33 AM
To: Michael Graham (ELCA) <migraham at expediagroup.com>
Cc: George Kirikos <icann at leap.com>; gnso-rpm-trademark at icann.org
Subject: Re: [Gnso-rpm-trademark] REMINDER - Proposed Agenda - RPM PDP WG TM Claims Sub Team - 27 March 2019

Yes, relevant information is unavailable to us at this point, I agree.  That doesn't make it not vital to drawing a conclusion about likelihood of efficacy.

Your comparison is quite interesting--was that part of the data already agreed on for our consideration? My quick search missed it, but it was quick--do you have the citation?  Though I'm certainly amenable to considering it, then I assume we agree that we will accept any additional data submitted by anyone at this point and after.

If we were to consider it, we would need to consider whether underrepresentation corresponds to underrepresentation in exact matches (the only things triggering Notices and NORNs) and how adding in the URS affects the comparison; although it's not the size of the UDRP, adding in the URS still adds a noticeable number of disputes.

Rebecca Tushnet
Frank Stanton Professor of First Amendment Law, Harvard Law School
703 593 6759
________________________________
From: Michael Graham (ELCA) <migraham at expediagroup.com<mailto:migraham at expediagroup.com>>
Sent: Thursday, March 28, 2019 2:47 AM
To: Tushnet, Rebecca
Cc: George Kirikos; gnso-rpm-trademark at icann.org<mailto:gnso-rpm-trademark at icann.org>
Subject: RE: [Gnso-rpm-trademark] REMINDER - Proposed Agenda - RPM PDP WG TM Claims Sub Team - 27 March 2019

Unfortunately both the issue and possible queries you have posed require examination of motive and/or intention.  Which I do not believe can be determined from any of the information we have.

One set of figures which I find of interest is that while 13% of new second level domains are being registered in the New gTLDs, only 6% of UDRP cases relate to domains in the New gTLD.  This appears to suggest that something about the New gTLDs is deterring registration of domain names that are challenged as confusingly similar to owned trademarks.

Michael R.

-----Original Message-----
From: Tushnet, Rebecca [mailto:rtushnet at law.harvard.edu]
Sent: Wednesday, March 27, 2019 10:04 AM
To: Michael Graham (ELCA) <migraham at expediagroup.com<mailto:migraham at expediagroup.com>>
Cc: George Kirikos <icann at leap.com<mailto:icann at leap.com>>; gnso-rpm-trademark at icann.org<mailto:gnso-rpm-trademark at icann.org>
Subject: Re: [Gnso-rpm-trademark] REMINDER - Proposed Agenda - RPM PDP WG TM Claims Sub Team - 27 March 2019

See my first 3 points-that doesn't give any indication of what in the set was deterred.

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 12:18 PM, Michael Graham (ELCA) via Gnso-rpm-trademark <gnso-rpm-trademark at icann.org<mailto:gnso-rpm-trademark at icann.org>> wrote:
>
> But also recall that it is 93.7% of applications to register domain names identical to TMCH registered trademarks, whereas 70% were of applications for all domain names.  I believe the figures support a determination that the Notice is achieving its purpose.
>
> Michael R.
>
> -----Original Message-----
> From: Gnso-rpm-trademark [mailto:gnso-rpm-trademark-bounces at icann.org]
> On Behalf Of George Kirikos
> Sent: Wednesday, March 27, 2019 9:13 AM
> To: gnso-rpm-trademark at icann.org<mailto:gnso-rpm-trademark at icann.org>
> Subject: Re: [Gnso-rpm-trademark] REMINDER - Proposed Agenda - RPM PDP
> WG TM Claims Sub Team - 27 March 2019
>
> Here's Brian Beckham's post from 2017:
>
> https://mm.icann.org/pipermail/gnso-rpm-wg/2017-June/002079.html
>
> 93.7% (remember, this is a stat from 1.8 million registration attempts, a statistically large sample) is materially higher than 70% (if that's the figure we assume is valid for domain name registrations). To put it another way, only 6.3% of customer proceed with a registration, after receiving a TMCH notice. Without a TMCH notice, if we assume that the abandonment rate is 70%, that means 30% proceed with a registration.
>
> 6.3% continuation rate vs. 30% continuation rate is a gigantic difference.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
>
>
>
>> On Wed, 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/
>>
>>> 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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