[gnso-rpm-wg] TMCH review objectives

Paul Keating Paul at law.es
Mon Sep 26 16:20:45 UTC 2016


Reg,

Your comments are very helpful.  I also would like to see any foundational
basis for the various claims being made regarding the pricing.

I suggest we keep in mind that a trademark holder desiring the register a
domain name always retains the ability to use the curative rights process
(UDRP/URS/Litigation).  What we are really discussing here is whether IN
ADDITION there should be some sort of pricing restrictions.  I am
wholeheartedly against interfering with the market which may be unfair at
times.

PRK

From:  Reg Levy <reg at mmx.co>
Date:  Monday, September 26, 2016 at 6:10 PM
To:  Paul Keating <paul at law.es>
Cc:  Kurt James Pritz <kurt at kjpritz.com>, "gnso-rpm-wg at icann.org"
<gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] TMCH review objectives

> People keep saying ³law² and ³rights² but the truth is that there are so many
> disparate national (and regional and local) laws that we cannot even hope to
> create something that complies with all of them. I agree with Rebecca, who is
> asking for specifics‹which law(s)? which right(s)? And then let¹s decide how
> or whether to attempt to draft something within that framework.
> 
> Ultimately, however, as Kurt said, "sites will be either: [1] infringing (and
> be taken down), [2] true and meaningful (where their notoriety will be
> deserved), or [3] non-impactful (where they will be ignored and the registries
> will dither in obscurity)² (numbers added).
> 
> Where a site is [1], we can all agree that it should be taken down (UDRP, URS,
> and registry-level policies generally take care of that‹if we believe that
> these are inadequate, let¹s have that conversation).
> 
> Where a site is [2], can we agree that it should not be taken down? If not,
> let¹s have that conversation.
> 
> Where a site is [3], do we need to bother with the conversation at this level?
> I hope not, but if there is disagreement, let¹s try.
> 
> We¹ve been talking as though [1], [2], and [3] are no different and should be
> treated identically, which I think is wrong.
> 
> /R
> 
> 
> Reg Levy
> VP Compliance + Policy | Minds + Machines Group Limited
> C: +1-310-963-7135
> S: RegLevy2
> 
> Current UTC offset: -7
> 
>> On 26 Sep 2016, at 07:09, Paul Keating <Paul at law.es> wrote:
>> 
>> Very well written.
>> 
>> Sincerely,
>> Paul Keating, Esq.
>> 
>> On Sep 26, 2016, at 5:03 AM, Kurt Pritz <kurt at kjpritz.com> wrote:
>> 
>>> Hi Everyone: 
>>> 
>>> I am sorry to be joining this line of conversation so late. Here is some
>>> perspective that I hope you find helpful.
>>> 
>>> I.    With regard to the TMCH purpose:
>>> 
>>> The purpose of the TMCH is to create efficiencies and reduce costs to
>>> trademark owners. Prior to this latest TLD round each new TLD registry (that
>>> were dribbling out at the rate of a couple a year) conducted a Sunrise
>>> period or a Claims period. Each TLD registry had it's own set of rules for
>>> registering marks, and Sunrise or Claims prices administrations. The TMCH
>>> was developed to give trademark owners a one-stop shop for registering marks
>>> for all TLD registries and one set of rules for the Sunrise and Claims
>>> processes - so that they did not have to follow the registration and
>>> administration processes for 1000+ new TLD registries.
>>> 
>>> The TMCH was to develop one uniform set of Sunrise and Claims processes but
>>> not to make significant improvements on the processes that preceded them,
>>> just make it consistent.
>>> 
>>> 
>>> II.   With regard to pricing:
>>> 
>>> A.   High Sunrise pricing:
>>> 
>>> The TMCH, as originally designed by the Implementation Recommendation Team
>>> and approved by the STI (I cannot remember what "STI" stood for), made it a
>>> choice for registry operators to offer Sunrise or Claims. This was to repeat
>>> the current and historical practice where each new TLD registry offered one
>>> or the other. Offering the option makes a lot of sense, especially in a
>>> regime where there are no price controls. I.e., a registry cannot be forced
>>> to offer a Sunrise, because it could just price the Sunrise names
>>> prohibitively. 
>>> 
>>> The GAC did not consider this common sense approach (or did not understand
>>> the ramifications) when it changed the IRT recommendation and insisted that
>>> new TLD registries be required to offer both Sunrise and Claims. The ICANN
>>> Board accepted the GAC model and the rest of the community, anxious to get
>>> on with the long delayed round, accepted the GAC-recommended change.
>>> 
>>> It is my opinion that we should not be too upset at a few registry operators
>>> charging high Sunrise prices. This was a foreseeable outcome of the
>>> requirement that registry operators offer both Claims and Sunrise. Even if a
>>> registry operator offers high Sunrise prices, they still offer the Claims
>>> period, which meets the original objective of the IRT in fashioning the
>>> TMCH.
>>> 
>>> 
>>> B.   Premium pricing of trademarked names:
>>> 
>>> If we focus on potential abusive behavior, rather than the ease with which a
>>> trademark owner can register its trademarked name in a TLD registry, there
>>> is less of a concern for trademark owners in this area. The higher a domain
>>> name is priced (as with a premium name), the less likely the domain holder
>>> is to engage in abusive behavior. That is because those that engage in
>>> infringing behavior are likely to lose their domain name through URS, UDRP
>>> or some other mechanism. That is why they purchase cheaper names that they
>>> do not mind losing. If a registrant purchases a domain of $X0,000, they are
>>> likely to avoid conduct that might lead to them losing the domain.
>>> 
>>> In many cases, the trademark owner might be pleased at the premium price
>>> because the trademark owner need not to register the name defensively in
>>> order to prevent infringing behavior by others. The price of the domain name
>>> does that for them.
>>> 
>>> In the case of a name that the trademark owner wants to register the name in
>>> a new TLD registry but it is priced at a high premium, well that is what
>>> markets are about. The name should go to the party that values the name more
>>> highly so long as that party has a legitimate right and use of the name.
>>> 
>>> We are concerned with abuse. I think that two ways that abuse will be
>>> naturally limited are: (1) a low Sunrise price that the trademark owner will
>>> willingly pay, and (2) a high Sunrise price (i.e., a Premium name price)
>>> that will effectively discourage rights-infringing registrants from
>>> obtaining the name.
>>> 
>>> 
>>> C.   Differential pricing of domains by registrants:
>>> 
>>> The examples of .feedback and .sucks is a lot trickier and might merit
>>> discussion. My understanding of those two registries is that they have
>>> carefully crafted registration criteria that comply with the ICANN rules
>>> and, at the same time, enables them to charge different prices based upon
>>> the registrant.
>>> 
>>> This group might consider providing policy advice to ICANN in attempt to
>>> close the sort of registration practices that .feedback and .sucks have
>>> implemented. In practice, this is likely to be difficult to do and result in
>>> unnecessary restricting the marketplace.
>>> 
>>> As admittedly a laissez-faire sort of guy, I believe we should look at
>>> whether the operation of either of these two (or other similarly-situated)
>>> registries have caused any deleterious effects and if their impact is beyond
>>> that achieved by any other such sites. E.g., is there a kurt.sucks domain
>>> that is more infringing and more impactful than the equivalent kurtsucks.com
>>> <http://kurtsucks.com/>  webpage? To me, these sites will be either:
>>> infringing (and be taken down), true and meaningful (where their notoriety
>>> will be deserved), or non-impactful (where they will be ignored and the
>>> registries will dither in obscurity)
>>> 
>>> 
>>> Sorry for taking so long to say this. I hope you found it useful. I can
>>> elaborate if you wish.
>>> 
>>> Best regards,
>>> 
>>> Kurt
>>> 
>>> ________________
>>> Kurt Pritz
>>> kurt at kjpritz.com
>>> +1.310.400.4184
>>> Skype: kjpritz
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> On Sep 26, 2016, at 7:13 AM, "Paul at law.es ZIMBRA" <paul at law.es> wrote:
>>> 
>>>> Petter,
>>>> 
>>>> I'm not sure I understand.  Are you referring to the pricing system of the
>>>> TMCH or the registries via their pricing of sunrise/premium domains.
>>>> 
>>>> If the reference is to the pricing by registries, I am not sure I
>>>> understand the logic behind a demand that the pricing be neutral.  I fully
>>>> understand the frustration at being faced,with a high price but I don't see
>>>> that any legal right has been impacted.
>>>> 
>>>> I have read various comments about "the law" and that high pricing is
>>>> tantamount to interference with the exercise of a right.  However, I have
>>>> not seen any reference to the actual "law" being referenced or an argument
>>>> as to how exorbitant pricing amounts to interference with any "right".
>>>> 
>>>> I don't see how restrictions on TMCH data would be useful.  It seems to me
>>>> that the information from TMCH is publicly available from other sources.
>>>> Thus, aside from perhaps the benefit of knowing that a trademark owner was
>>>> "interested" in domains (as a result of having registered with the TMCH)
>>>> And receiving the data in a user-friendly format, don't see how restricting
>>>> use of TMCH data would,resolve the asserted problem.    The registries
>>>> would simply obtain the data elsewhere.
>>>> 
>>>> Nor have I seen empirical evidence that such pricing (a) resulted in the
>>>> trademark owner not registering the relevant domain AND (b) that the same
>>>> domain was registered and used in bad faith or in an infringing manner.
>>>> While some trademark holders may have paid the price, I would think they
>>>> saw sufficient value to justify their registration as opposed to (a) the
>>>> risk another legitimate trademark holder obtaining the domain or (b) later
>>>> reliance upon curative rights (UDRP/URS/litigation) in the event it was
>>>> registered by a cyber squatter.
>>>> 
>>>> Let's not forget here that the "value" proposition present in the high
>>>> price reflects not only the value of "preventing" potential cyber squatting
>>>> but also the right to preclude BOTH competing registered and coo on law
>>>> trademark holders (I.e. those having rights as to different classes of
>>>> goods/services) from obtaining the same domain.  And, of course this value
>>>> proposition is played out on a global scale and not a micro economic scale
>>>> involving a relatively few registered trademark rights holders.  Given the
>>>> above I am not prepared to substitute my subjective views on what is
>>>> "reasonable" for those of the marketplace.
>>>> 
>>>> 
>>>> Paul Keating
>>>> 
>>>> On 25 Sep 2016, at 1:00 PM, Petter Rindforth
>>>> <petter.rindforth at fenixlegal.eu> wrote:
>>>> 
>>>>> + Lori & Jeff
>>>>> 
>>>>> This price system raises a question on the neutrality of the system.
>>>>> 
>>>>> / Petter
>>>>> 
>>>>> -- 
>>>>> Petter Rindforth, LL M
>>>>> 
>>>>> Fenix Legal KB
>>>>> Stureplan 4c, 4tr
>>>>> 114 35 Stockholm
>>>>> Sweden 
>>>>> Fax: +46(0)8-4631010
>>>>> Direct phone: +46(0)702-369360
>>>>> E-mail: petter.rindforth at fenixlegal.eu
>>>>> www.fenixlegal.eu <http://www.fenixlegal.eu/>
>>>>> 
>>>>> 
>>>>> NOTICE 
>>>>> This e-mail message is intended solely for the individual or individuals
>>>>> to whom it is addressed. It may contain confidential attorney-client
>>>>> privileged information and attorney work product. If the reader of this
>>>>> message is not the intended recipient, you are requested not to read, copy
>>>>> or distribute it or any of the information it contains. Please delete it
>>>>> immediately and notify us by return e-mail.
>>>>> Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu/>
>>>>> Thank you
>>>>> 
>>>>> 23 september 2016 22:50:33 +02:00, skrev Lori Schulman
>>>>> <lschulman at inta.org>:
>>>>>> As Jeff pointed out, it¹s not a question of keeping prices low or high,
>>>>>> it¹s about discriminatory pricing based on whether a national right is
>>>>>> granted in a name.   I agree with you that the right is separate from the
>>>>>> pricing but when the prices are manipulated based on an exercise of a
>>>>>> right it becomes a concern.  There is a built in deterrent to using the
>>>>>> TMCH based on a right when that use then leads to extraordinary pricing.
>>>>>> 
>>>>>>  
>>>>>> Lori S. Schulman
>>>>>> 
>>>>>> Senior Director, Internet Policy
>>>>>> 
>>>>>> International Trademark Association (INTA)
>>>>>> 
>>>>>> +1-202-704-0408, Skype: lsschulman
>>>>>> 
>>>>>>  
>>>>>> From: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu]
>>>>>> Sent: Friday, September 23, 2016 4:42 PM
>>>>>> To: Kiran Malancharuvil <Kiran.Malancharuvil at markmonitor.com>
>>>>>> Cc: Lori Schulman <lschulman at inta.org>; Jeff Neuman
>>>>>> <jeff.neuman at comlaude.com>; gnso-rpm-wg at icann.org
>>>>>> Subject: RE: [gnso-rpm-wg] TMCH review objectives
>>>>>> 
>>>>>>  
>>>>>> 
>>>>>> I¹m not sure what you¹re saying.  I am asking why keeping prices low (but
>>>>>> maybe not too low, given other comments) is a concern of the TMCH review,
>>>>>> and asking for a reason related to the legal rights, as opposed to market
>>>>>> interests, of trademark owners.  If such a reason isn¹t persuasively
>>>>>> articulated, then I think that would give us an answer.
>>>>>> 
>>>>>>  
>>>>>> Rebecca Tushnet
>>>>>> 
>>>>>> Georgetown Law
>>>>>> 
>>>>>> 703 593 6759
>>>>>> 
>>>>>>  
>>>>>> From: Kiran Malancharuvil [mailto:Kiran.Malancharuvil at markmonitor.com]
>>>>>> Sent: Friday, September 23, 2016 4:37 PM
>>>>>> To: Rebecca Tushnet
>>>>>> Cc: Lori Schulman; Jeff Neuman; gnso-rpm-wg at icann.org
>>>>>> Subject: RE: [gnso-rpm-wg] TMCH review objectives
>>>>>> 
>>>>>>  
>>>>>> 
>>>>>> I think it would probably be a mistake then, to try and exclude the issue
>>>>>> from the discussion, if you wish to discuss it.
>>>>>> 
>>>>>>  
>>>>>> 
>>>>>> Thanks,
>>>>>> 
>>>>>> 
>>>>>> Kiran
>>>>>> 
>>>>>>  
>>>>>> From: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu]
>>>>>> Sent: Friday, September 23, 2016 1:35 PM
>>>>>> To: Kiran Malancharuvil <Kiran.Malancharuvil at markmonitor.com>
>>>>>> Cc: Lori Schulman <lschulman at inta.org>; Jeff Neuman
>>>>>> <jeff.neuman at comlaude.com>; gnso-rpm-wg at icann.org
>>>>>> Subject: Re: [gnso-rpm-wg] TMCH review objectives
>>>>>> 
>>>>>>  
>>>>>> 
>>>>>> I would then like that understanding of the law to be articulated,
>>>>>> because I don't see it.
>>>>>> 
>>>>>> Rebecca Tushnet
>>>>>> 
>>>>>> Georgetown Law
>>>>>>  
>>>>>> Sent from my phone. Apologies for terseness/typos.
>>>>>> 
>>>>>> 
>>>>>> On Sep 23, 2016, at 4:29 PM, Kiran Malancharuvil
>>>>>> <Kiran.Malancharuvil at markmonitor.com> wrote:
>>>>>> 
>>>>>>> 
>>>>>>> Hi Rebecca,
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>> I think it¹s fair to say that the trademark community (through INTA and
>>>>>>> elsewhere) is basing their concerns on a full understanding of the law.
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>> Thanks,
>>>>>>> 
>>>>>>> Kiran
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>> Kiran Malancharuvil
>>>>>>> 
>>>>>>> Policy Counselor
>>>>>>> 
>>>>>>> MarkMonitor
>>>>>>> 
>>>>>>> 415.222.8318 (t)
>>>>>>> 
>>>>>>> 415.419.9138 (m)
>>>>>>> 
>>>>>>> www.markmonitor.com <http://www.markmonitor.com/>
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>>  
>>>>>>> From: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu]
>>>>>>> Sent: Friday, September 23, 2016 1:26 PM
>>>>>>> To: Lori Schulman <lschulman at inta.org>
>>>>>>> Cc: Kiran Malancharuvil <Kiran.Malancharuvil at markmonitor.com>; Jeff
>>>>>>> Neuman <jeff.neuman at comlaude.com>; gnso-rpm-wg at icann.org
>>>>>>> Subject: Re: [gnso-rpm-wg] TMCH review objectives
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>> To reiterate and then I will try to stop: "deep concern" and "related to
>>>>>>> a right granted by national law" are very different things.
>>>>>>> 
>>>>>>> Rebecca Tushnet
>>>>>>> 
>>>>>>> Georgetown Law
>>>>>>>  
>>>>>>> Sent from my phone. Apologies for terseness/typos.
>>>>>>> 
>>>>>>> 
>>>>>>> On Sep 23, 2016, at 4:17 PM, Lori Schulman <lschulman at inta.org> wrote:
>>>>>>> 
>>>>>>> 
>>>>>>> I also agree with Brad and Jeff.  This pricing issue is a deep concern
>>>>>>> for INTA members.
>>>>>>> 
>>>>>>>  
>>>>>>> Lori S. Schulman
>>>>>>> 
>>>>>>> Senior Director, Internet Policy
>>>>>>> 
>>>>>>> International Trademark Association (INTA)
>>>>>>> 
>>>>>>> +1-202-704-0408, Skype: lsschulman
>>>>>>> 
>>>>>>>  
>>>>>>> From:gnso-rpm-wg-bounces at icann.org
>>>>>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Kiran Malancharuvil
>>>>>>> via gnso-rpm-wg
>>>>>>> Sent: Friday, September 23, 2016 3:31 PM
>>>>>>> To: Jeff Neuman <jeff.neuman at comlaude.com>
>>>>>>> Cc: gnso-rpm-wg at icann.org
>>>>>>> Subject: Re: [gnso-rpm-wg] TMCH review objectives
>>>>>>> 
>>>>>>>  
>>>>>>> 
>>>>>>> Agree with Jeff and Bradley below.
>>>>>>> 
>>>>>>> Kiran Malancharuvil
>>>>>>> Policy Counselor
>>>>>>> MarkMonitor
>>>>>>> 415-419-9138 (m)
>>>>>>> 
>>>>>>> Sent from my mobile, please excuse any typos.
>>>>>>> 
>>>>>>> On Sep 23, 2016, at 10:00 AM, Jeff Neuman
>>>>>>> <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
>>>>>>> <mailto:jeff.neuman at comlaude.com%3e%3e>  wrote:
>>>>>>> 
>>>>>>> We also need to look at examples out there where it is not just premium
>>>>>>> pricing of domains, but there was at least one case (.feedback) that
>>>>>>> said if you are a trademark owner (whether or not purchased in the
>>>>>>> Sunrise or after), the price is $X, but if you are not the trademark
>>>>>>> owner, then your price is $Y, where $Y was thousands of dollars less.
>>>>>>> 
>>>>>>> See: 
>>>>>>> http://domainincite.com/19560-forget-sucks-feedback-will-drive-trademark
>>>>>>> -owners-nuts-all-over-again and
>>>>>>> http://domainincite.com/19615-feedback-regs-fox-trademark-to-itself-duri
>>>>>>> ng-sunrise
>>>>>>> 
>>>>>>> I believe the policies of .sucks and .feedback need to be discussed. It
>>>>>>> is one thing to have premium pricing on a name whereby any purchaser of
>>>>>>> the name would have to pay the same price (even if high); but, it is
>>>>>>> another thing to have different prices for a name depending on who the
>>>>>>> purchaser is (discrimination amongst purchasers). That I do believe is
>>>>>>> in our scope.
>>>>>>> 
>>>>>>> Jeffrey J. Neuman
>>>>>>> Senior Vice President |Valideus USA | Com Laude USA
>>>>>>> 1751 Pinnacle Drive, Suite 600
>>>>>>> Mclean, VA 22102, United States
>>>>>>> E: jeff.neuman at valideus.com<mailto:jeff.neuman at valideus.com>
>>>>>>> <mailto:jeff.neuman at valideus.com%3e>  or
>>>>>>> jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
>>>>>>> <mailto:jeff.neuman at comlaude.com%3e>
>>>>>>> T: +1.703.635.7514
>>>>>>> M: +1.202.549.5079
>>>>>>> @Jintlaw
>>>>>>> 
>>>>>>> 
>>>>>>> From: 
>>>>>>> gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>
>>>>>>> <mailto:gnso-rpm-wg-bounces at icann.org%3e>
>>>>>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Phil Corwin
>>>>>>> Sent: Friday, September 23, 2016 12:20 PM
>>>>>>> To: Rebecca Tushnet
>>>>>>> <rlt26 at law.georgetown.edu<mailto:rlt26 at law.georgetown.edu>>
>>>>>>> <mailto:rlt26 at law.georgetown.edu%3e%3e>
>>>>>>> Cc: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
>>>>>>> Subject: Re: [gnso-rpm-wg] TMCH review objectives
>>>>>>> 
>>>>>>> ³If post-Sunrise registrations of expensive domain names have led to
>>>>>>> infringement, I hope we will be able to collect evidence of that.²
>>>>>>> 
>>>>>>> Agreed that we should seek this type of data, certainly anecdotal and
>>>>>>> more comprehensive if available.
>>>>>>> 
>>>>>>> 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: Rebecca Tushnet [mailto:rlt26 at law.georgetown.edu]
>>>>>>> Sent: Friday, September 23, 2016 12:16 PM
>>>>>>> To: Phil Corwin
>>>>>>> Cc: Silver, Bradley; gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
>>>>>>> Subject: Re: TMCH review objectives
>>>>>>> 
>>>>>>> And is the additional system cost (one component of effectiveness) of
>>>>>>> individualized review of pricing worth this hypothetical increased risk
>>>>>>> of later infringement? If post-Sunrise registrations of expensive domain
>>>>>>> names have led to infringement, I hope we will be able to collect
>>>>>>> evidence of that. Likewise with the hypothetical effect of encountering
>>>>>>> an unregistered domain in a new gTLD. In an age of search engines, I
>>>>>>> thought we had gotten past the idea that a consumer would type in a
>>>>>>> domain name and then give up if no website, or a nonconfusing but
>>>>>>> non-trademark owner website, resolves. I also highly doubt there's
>>>>>>> evidence that consumers think less of a trademark owner for not
>>>>>>> registering every variation.
>>>>>>> 
>>>>>>> Rebecca Tushnet
>>>>>>> Georgetown Law
>>>>>>> 
>>>>>>> Sent from my phone. Apologies for terseness/typos.
>>>>>>> 
>>>>>>> On Sep 23, 2016, at 11:39 AM, Phil Corwin
>>>>>>> <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> <mailto:psc at vlaw-dc.com%3e%3e>
>>>>>>> wrote:
>>>>>>> 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>
>>>>>>> <mailto:gnso-rpm-wg-bounces at icann.org%3e>
>>>>>>> [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<mailto:gnso-rpm-wg at icann.org>
>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
>>>>>>> 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<mailto:gnso-rpm-wg at icann.org>
>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
>>>>>>> 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>
>>>>>>> <mailto:gnso-rpm-wg-bounces at icann.org%3e>
>>>>>>> [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>
>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
>>>>>>> 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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>>>>>>> 
>>>>>>> ________________________________
>>>>>>> No virus found in this message.
>>>>>>> Checked by AVG - www.avg.com <http://www.avg.com/> <http://www.avg.com>
>>>>>>> <http://www.avg.com%3e/>
>>>>>>> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date:
>>>>>>> 09/23/16
>>>>>>> ________________________________
>>>>>>> No virus found in this message.
>>>>>>> Checked by AVG - www.avg.com <http://www.avg.com/> <http://www.avg.com>
>>>>>>> <http://www.avg.com%3e/>
>>>>>>> Version: 2016.0.7797 / Virus Database: 4656/13069 - Release Date:
>>>>>>> 09/23/16
>>>>>>> _______________________________________________
>>>>>>> gnso-rpm-wg mailing list
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>>>>>>> <mailto:gnso-rpm-wg at icann.org%3e>
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>>>>>>> 
>>>>>>> 
>>>>>>> 
>>>>>>> _______________________________________________
>>>>>>> gnso-rpm-wg mailing list
>>>>>>> gnso-rpm-wg at icann.org
>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>>> 
>>>>>> 
>>>>>> _______________________________________________
>>>>>> gnso-rpm-wg mailing list
>>>>>> gnso-rpm-wg at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>> 
>>>>> _______________________________________________
>>>>> gnso-rpm-wg mailing list
>>>>> gnso-rpm-wg at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>> _______________________________________________
>>>> gnso-rpm-wg mailing list
>>>> gnso-rpm-wg at icann.org
>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>> 
>>> _______________________________________________
>>> gnso-rpm-wg mailing list
>>> gnso-rpm-wg at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>> _______________________________________________
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>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
> 


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