[gnso-rpm-wg] TMCH review objectives

Mon Sep 26 23:39:06 UTC 2016

I apologize for the name error.

As for use of data, I believe the same data is publicly available from any number of non-TMCH data.   In that regard can staff please publish the data points that TMCH does publish to registries?

Paul Keating

> On 26 Sep 2016, at 11:54 PM, J. Scott Evans <jsevans at adobe.com> wrote:
> 
> Paul:
> 
> First, we can agree to disagree. Also, my name is “J. Scott” (kind of my trademark) :-).
> 
> Second, I am not talking about regulating a price. However, I do think pricing is relevant if the “data” is being used for a purpose (targeting trademarks for increased pricing) for which it was not intended and that is against the interest of the parties who the TMCH was designed to assist in handling the explosion of new gTLDs.
> 
> 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
> www.adobe.com
> 
> 
> 
> From: "Paul at law.es ZIMBRA" <paul at law.es>
> Date: Monday, September 26, 2016 at 1:22 PM
> To: "J. Scott Evans" <jsevans at adobe.com>
> Cc: 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
> 
> 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> 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
>> www.adobe.com
>> 
>> 
>> 
>> From: <gnso-rpm-wg-bounces at icann.org> on behalf of Paul Keating <Paul at law.es>
>> Date: Friday, September 23, 2016 at 9:04 AM
>> 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
>> 
>> 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
>> Tel. +34 93 368 0247 (Spain)
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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
>>  
>> 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
>> 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] 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 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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