[gnso-rpm-wg] TMCH review objectives

Paul Keating Paul at law.es
Mon Sep 26 17:59:34 UTC 2016


:-)  2 points.

From:  <gnso-rpm-wg-bounces at icann.org> on behalf of Steve Levy
<slevy at accentlawgroup.com>
Date:  Monday, September 26, 2016 at 7:24 PM
To:  Volker Greimann <vgreimann at key-systems.net>, "gnso-rpm-wg at icann.org"
<gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] TMCH review objectives

> Volker,
> 
> Having represented Nike in some of its anticybersquatting efforts, I wish I
> had an extra dollar for every time a domain owner instantly became a big fan
> of this Greek goddess when responding to my demand letter!
> 
> Steve
> 
> From: <gnso-rpm-wg-bounces at icann.org> on behalf of Volker Greimann
> <vgreimann at key-systems.net>
> Date: Monday, September 26, 2016 at 4:49 AM
> To: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
> Subject: Re: [gnso-rpm-wg] TMCH review objectives
> 
> And even with this famous name, there is a wikipedia disambiguation page of
> over half a dozen other uses which may have something to do with this famous
> mark originally being the name of a Greek Goddess personifying victory. ;-)
> 
> Volker
> 
> Am 23.09.2016 um 17:53 schrieb Paul Keating:
>> Steven,
>> 
>> With all due respect when will ³protection² find its limits.  Just because
>> the right to use something is high does not equate with a denial of rights.
>> Unless a domain name is subject to only one passible use (that of the brand
>> owner) and no other uses, then it remains an asset of the registry to sell as
>> it deems fit.  If the brand owner ­ who is only one of a number of users ­ is
>> unable to afford the price, such is life.  AND when I say one possible use I
>> really mean it.  The name would not only have to be coined but famous.  A
>> coined term is one that was invented but history teaches that inventions are
>> not unique.  They are often repeated.  A famous mark is one that transcends
>> use and extents to completely unrelated commercial monetization.  An example
>> ­ one of the few I can think of - would be NIKE.
>> 
>> Lets stay focussed and reasonable please.  Just because something is
>> expensive does not equate to something that infringes.
>> 
>> Sincerely,
>> 
>> Paul Raynor Keating, Esq.
>> 
>> Law.es <http://law.es/>
>> 
>> Tel. +34 93 368 0247 (Spain)
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>> 
>> email:  Paul at law.es
>> 
>>  
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>> From: <gnso-rpm-wg-bounces at icann.org> on behalf of Steve Levy
>> <slevy at accentlawgroup.com>
>> Date: Friday, September 23, 2016 at 5:40 PM
>> To: Phil Corwin <psc at vlaw-dc.com>, 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
>> 
>>> I¹d also like to add my view that ³protection² can take a number of
>>> different forms.  Stopping someone from infringing upon one¹s trademark is
>>> the most obvious one but protecting brand owners from having their
>>> trademarks held for ransom at an unreasonably high premium price is another.
>>> If, for example, [brand].TLD is priced at US$50000 as a premium domain it
>>> effectively prevents the brand owner from purchasing that domain and the
>>> website remains either non-resolved or perhaps as a registry advertisement.
>>> The public may then see this site and mistakenly believe that the brand
>>> owner has either gone out of business or is not devoting sufficient
>>> resources to promoting its brand online.  Preventing this type of negative
>>> impact on the brand is another form of ³protection².
>>> 
>>> Regards,
>>> Steve
>>> 
>>> Steven M. Levy, Esq.
>>> 
>>> Accent Law Group, Inc.
>>> 301 Fulton St.
>>> Philadelphia, PA 19147
>>> 
>>> United States
>>> 
>>> Phone: +1-215-327-9094
>>> Email: slevy at AccentLawGroup.com
>>> 
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>>> LinkedIn: www.linkedin.com/in/stevelevy43a/
>>> <http://www.linkedin.com/in/stevelevy43a/>
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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 11:39 AM
>>> 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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