[gnso-rpm-wg] TMCH review objectives
Paul Keating
Paul at law.es
Fri Sep 23 16:04:06 UTC 2016
Phil,
In furtherance to my last email responding to Mr. Levy, even an unreasonably
priced domain is not infringing. It is important that we not mix up the
concepts at issue. We are discussing both ³preventative rights: and
³curative rights². The preventative rights mechanism should be severely
limited because it acts as a restraint of market tendencies in the absence
of actual infringement. Imposing preventative measures is akin to imposing
a ³prior restraint² which (certainly in the area of speech) is disfavored
as a matter of public policy. The curative rights mechanism is the 2nd tool
which permits rights holders to rectify an infringement that has actually
occurred.
Rights holders already have the ability to pursue legal claims against a
registry who is intentionally targeting them by restricting access to
domains other than by way of exorbitant pricing. The hurdles that the
rights holders must overcome to succeed on such claims are understandably
high just as they are with any other claimant faced with a similar
situation in a non-domain-related situation. However, such is life. It is
not our place to alter the legal environment and create contractually-based
claims that do not already exist in the law.
I believe this was the import of the comment made during the last call
asking to differentiate economic costs from ³rights².
Sincerely,
Paul Raynor Keating, Esq.
Law.es <http://law.es/>
Tel. +34 93 368 0247 (Spain)
Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)
Fax. (Europe) +34 93 396 0810
Fax. (US)(415) 358.4450
Skype: Prk-Spain
email: Paul at law.es
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From: <gnso-rpm-wg-bounces at icann.org> on behalf of Phil Corwin
<psc at vlaw-dc.com>
Date: Friday, September 23, 2016 at 5:39 PM
To: Rebecca Tushnet <rlt26 at law.georgetown.edu>, "Silver, Bradley"
<Bradley.Silver at timewarner.com>, "gnso-rpm-wg at icann.org"
<gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] TMCH review objectives
> I believe I just addressed that question in the email I posted if
> unreasonably high sunrise pricing deters a rights holder from registering a
> domain corresponding to a verified TM registered in the TMCH then it may be
> registered in the general availability period by an infringer, which in turn
> imposes a variety of costs on the TM owner (including those of bringing a
> subsequent URS, UDRP, or judicial action) and also creates the possibility of
> confusion and harm for the general public.
>
> This is not to say that all Premium pricing is unreasonable, as it is
> generally recognized that certain words and terms have inherent additional
> value in the DNS context it really requires a case by case analysis.
>
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/Cell
>
> Twitter: @VlawDC
>
> "Luck is the residue of design" -- Branch Rickey
>
>
> From: 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 11:10 AM
> To: Silver, Bradley; gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] TMCH review objectives
>
> TMCH¹s goal of ³protection² 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
> 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 TMCH¹s 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] On
> Behalf Of Rebecca Tushnet
> Sent: Friday, September 23, 2016 10:26 AM
> To: 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 TMCH¹s
> 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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