[gnso-rpm-wg] TMCH review objectives

Silver, Bradley Bradley.Silver at timewarner.com
Fri Sep 23 15:37:22 UTC 2016


As you know, the protection mechanisms facilitated by the TMCH are the sunrise services and claim services.  Targeting brand owners for higher pricing during the sunrise period inhibits trademark owners from making effective use of that particular service.  You may validly ask whether the services envisaged by the TMCH are doing enough to deter infringement, but that is a different question from asking whether the services themselves are living up to their potential to provide trademark owners with a tool to assert their rights in a mark by registering a domain prior to general availability, or for the matter, during general availability when brand-targeted pricing creates an uneven playing field.

From: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu]
Sent: Friday, September 23, 2016 11:10 AM
To: Silver, Bradley; gnso-rpm-wg at icann.org
Subject: RE: TMCH review objectives

TMCH's goal of "protection" against what, though?  How does high pricing contribute to trademark infringement?  High pricing may deter purchases of domain names, no doubt, but with what result for the system overall?

Rebecca Tushnet
Georgetown Law
703 593 6759

From: Silver, Bradley [mailto:Bradley.Silver at timewarner.com]
Sent: Friday, September 23, 2016 11:00 AM
To: Rebecca Tushnet; gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: RE: TMCH review objectives

I would add that the question of pricing feeds into the concept of effectiveness, because if the TMCH is serving as a database for registries to target brand owners for higher pricing based on the value of their brands, then this is antithetical to the TMCH's primary goal to provide protection for verified right holders.

From: gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Rebecca Tushnet
Sent: Friday, September 23, 2016 10:26 AM
To: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: [gnso-rpm-wg] TMCH review objectives

Hello, all.  On the last WG call, concerns about pricing of domain names during the Sunrise Period arose. This led to a question of whether pricing is within the remit of this WG - and the broader question of what the purpose of our TMCH review is.  There seemed to be a desire to focus on the TMCH's effectiveness. The predicate question, then, is: effectiveness at what?  Here are some suggestions for discussion: (1) minimizing the cost of operating the system for all concerned; (2) minimizing the number of actions that ultimately need to be brought against infringing registrants; (3) minimizing the number of noninfringing registrants whose legitimate uses are blocked or deterred.  If the system is reasonably balancing those objectives, I suggest, then it is effective; potential changes should be directly related to improving performance on one or more of these metrics without unduly hampering the others.

Yours,
Rebecca Tushnet

Rebecca Tushnet
Georgetown Law
703 593 6759

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