[gnso-rpm-wg] TMCH review objectives

Mon Sep 26 21:28:27 UTC 2016

I agree with J Scott.  This not just about traditional market principles like a piece of land being in a choice location and the price goes up because the demand for land in the area is high.  The issue here is about predatory pricing that targets rights holders.  I agree that pricing for a true generic is market driven, but there have been numerous instances where domain names have been put in the “generic” bucket when they really do not belong there and the registry is clearly attempting to obtain a higher price from the rights holder.  As some have already made clear, there have been situations where a domain name is priced excessively high in the sunrise period in order to deter the rights holder from acquiring it only to then have the price drop significantly in the general availability period.  This may not be a TMCH issue per se, but it certainly defeats the purpose of the sunrise period as an RPM.

Georges Nahitchevansky
Kilpatrick Townsend & Stockton LLP
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From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Paul at law.es ZIMBRA
Sent: Monday, September 26, 2016 4:23 PM
To: J. Scott Evans
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] TMCH review objectives

Scott,

I strongly disagree.

First I don't think it is bad faith and certainly not per se so as to warrant a global pricing restriction.

The fact that there are potential buyers who may value a domain at a higher price is nothing but applying traditional market principles applied in virtually every other form of business.  Domains are not utilities to be regulated in such manner.   Nor do I see any basis to guaranty pricing for the benefit of trademark holders.

Second, given that the same "TMCH data" is publicly available I don't understand the basis for focusing on TMCH as the evil source.

Paul Keating

On 26 Sep 2016, at 9:26 PM, J. Scott Evans <jsevans at adobe.com<mailto:jsevans at adobe.com>> wrote:
Paul:

Respectfully, I think you are missing some of the point here. I agree the market should operate as a free market. However, using the data in the TMCH to create lists of “premium” domains in the hope of having trademark owners pay exorbitant prices to acquire their marks is a bad faith practice that should be halted.

J Scott

J. Scott Evans | Associate General Counsel - Trademarks, Copyright, Domains & Marketing |

Adobe

345 Park Avenue

San Jose, CA 95110
408.536.5336 (tel), 408.709.6162 (cell)
jsevans at adobe.com<mailto:jsevans at adobe.com>

www.adobe.c<http://www.adobe.c>om

From: <gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>> on behalf of Paul Keating <Paul at law.es<mailto:Paul at law.es>>
Date: Friday, September 23, 2016 at 9:04 AM
To: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>, Rebecca Tushnet <rlt26 at law.georgetown.edu<mailto:rlt26 at law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>, "gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>" <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: Re: [gnso-rpm-wg] TMCH review objectives

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 “preventative rights: and “curative rights”.  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 “prior restraint” 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 “rights”.

Sincerely,
Paul Raynor Keating, Esq.
Law.es<http://law.es/>
Tel. +34 93 368 0247 (Spain)
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From: <gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>> on behalf of Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Friday, September 23, 2016 at 5:39 PM
To: Rebecca Tushnet <rlt26 at law.georgetown.edu<mailto:rlt26 at law.georgetown.edu>>, "Silver, Bradley" <Bradley.Silver at timewarner.com<mailto:Bradley.Silver at timewarner.com>>, "gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>" <gnso-rpm-wg at icann.org<mailto: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
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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 11:10 AM
To: Silver, Bradley; gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] 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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