[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Michael Graham (ELCA)
migraham at expedia.com
Mon Apr 10 22:10:03 UTC 2017
Paul:
I'm pretty sure you meant "preemptive".
You also refer to "infringing" although that is not part of the TMCH analysis as I understand it -- which is only for "identical" marks. There is, as you know, a difference.
In addition, my understanding is that two or more trademark owners can register the same trademark with the TMCH if they both own registrations or other rights to the trademarks. The "preemptive" right would then remain, as with all domain names, "first to register".
In fact, I'm concerned by the entire "first come" registration priority insofar as it gives unreasonable advantage to technically more sophisticated entities regardless of the parties' rights to use the terms.
Actually, priority registration seems to beg the question: If trademark registrations and rights -- which are, after all rights that are bestowed only after some level of review and determination of rights by either a government agency or judicially -- violate (or potentially violate) rights of free speech and expression because they preempt registration of domain names consisting of the same words; how much worse is both the potential for gaming and the effect on free expression of the "first come first registered" rule and the control of premium and reserved domain names by registries?
Michael R.
-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Paul Keating
Sent: Monday, April 10, 2017 2:56 PM
To: Kiran Malancharuvil <Kiran.Malancharuvil at markmonitor.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Blocked as in the holder of a trademark has pre-emotive rights to register the domain and thus preclude its use by others without regard to whether such use would be "infringing".
Sent from my iPad
> On 9 Apr 2017, at 19:42, Kiran Malancharuvil via gnso-rpm-wg <gnso-rpm-wg at icann.org> wrote:
>
> What do you mean by "blocked"?
>
> Kiran Malancharuvil
> Policy Counselor
> MarkMonitor
> 415-419-9138 (m)
>
> Sent from my mobile, please excuse any typos.
>
>> On Apr 9, 2017, at 10:08 AM, Rebecca Tushnet <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>
>> Following up on my post from yesterday, let's make this more specific:
>> I see clear free speech issues that can arise from an attempt to
>> register cloud.X (where X is a new gTLD), smart.X, love.X, luxury.X,
>> nyc.x and the like. Those along with forex, hotel, one, london, and
>> abc, are the top ten downloads from the TMCH. Of course, as Michael
>> K. indicates, we'd know more about how many dictionary terms are
>> being blocked if there were more transparency, but what we do know
>> right now should be concerning.
>> Rebecca Tushnet
>> Georgetown Law
>> 703 593 6759
>>
>>
>>> On Sun, Apr 9, 2017 at 12:51 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>>> My responses are in-line.
>>>
>>> G
>>> reg
>>>
>>>
>>> On Sat, Apr 8, 2017 at 1:39 PM, Michael Karanicolas
>>> <mkaranicolas at gmail.com>
>>> wrote:
>>>>
>>>> Hi,
>>>>
>>>> I think that Michael Graham brings up a salient point in terms of
>>>> falling too far down the rabbit hole on background matters, but I
>>>> should address a few issues in response to questions that were directly asked of me.
>>>>
>>>> First off, while Greg is correct to point out that the UDHR is not
>>>> formally legally binding as a UNGA resolution, it is (quite
>>>> literally) the textbook example of customary international law. I
>>>> realize that can be a fuzzy concept to rely on, but luckily I don't
>>>> have to rely on it because the freedom of expression protections in
>>>> the UDHR are substantially identical to those found in the ICCPR, which IS a formally binding treaty.
>>>
>>>
>>> Binding on states. Of course, ICANN is not a state. Luckily, we
>>> have the new human rights Core Value in the ICANN Bylaws, Section
>>> 1.2(b)(viii), which states that one of ICANN's eight Core Values
>>> (which must be subject to a balancing analysis involving all Core
>>> Values). is "within the scope of its Mission and other Core Values,
>>> respecting internationally recognized human rights as required by
>>> applicable law." The Bylaw specifically notes that "This Core Value
>>> does not create, and shall not be interpreted to create, any
>>> obligation on ICANN outside its Mission, or beyond obligations found
>>> in applicable law." As such, ICANN's obligations do not go beyond
>>> what would otherwise be required by applicable law. There's been a
>>> great deal of discussion of this in CCWG-Accountability WS1 and in
>>> the Human Rights Subgroup of WS2, so I won't go further into the concepts here, which would be a rabbit hole down a rabbit hole from the viewpoint of this group.
>>>>
>>>>
>>>> Also, while I appreciate Greg's caution against "cherrypicking" by
>>>> viewing Article 19 in isolation, in this context that argument is
>>>> just a smokescreen.
>>>
>>>
>>> Concerns about cherrypicking are in no way a "smokescreen" -- unless
>>> the reference is to the saying "where there's smoke, there's fire."
>>> John Levine's blog nicely expressed a number of concerns about such
>>> cherrypicking, especially for what he calls the "fashionable human rights,"
>>> so I won't repeat them here. It is important to keep in mind, as
>>> Michael notes, that "human rights are fundamentally about balance,"
>>> so perhaps we are not so far apart, as "balance" and "cherrypicking"
>>> are mutually exclusive concepts.
>>>
>>> Of course the UDHR and ICCPR need to be viewed holistically - that
>>> understanding in no way supports an argument that domains are not speech.
>>>
>>> I'm puzzled by the second part of this sentence. I think this point
>>> is unrelated to the issue of whether or not domain names are speech,
>>> so it neither supports nor negates any argument on that topic.
>>>
>>> There's no conflict between believing in personal privacy as
>>> protected by the ICCPR (as I do), and believing in the need to
>>> combat hate speech as spelled out in the ICCPR (as I do), and believing in freedom of expression.
>>> Human rights are fundamentally about balance (more on that in a second).
>>>
>>> There are certainly conflicts (e.g., between combating hate speech
>>> and supporting free speech); the issue is how to balance these
>>> countervailing issues to resolve these conflicts.
>>>>
>>>>
>>>> With regard to Ballantyne, Davidson & McIntyre, I probably should
>>>> have been more specific in my original post. Of course, as Greg
>>>> notes, the case is not specifically about domain names - which
>>>> would be a pretty niche area for the Human Rights Committee to dig
>>>> into. But the decision contains the clearest statement of the
>>>> extent of what constitutes "speech" under the ICCPR, namely that
>>>> Article 19: "must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others".
>>>> It's an incredibly broad formulation - to cover virtually anything
>>>> that conveys meaning. I, personally, can't see an interpretation of
>>>> that that doesn't include domain names.
>>>
>>>
>>> This is not really that broad a formulation -- it dovetails nicely
>>> with the concept of "expressive speech" under US law (as in the excerpt from Gibson).
>>> Furthermore, there is a considerable difference between the speech
>>> constituting "subjective ideas and opinions" protected in Ballantyne
>>> and the "incredibly broad formulation" that would elevate "virtually
>>> anything that conveys meaning." "Subjective ideas and opinions" in
>>> no way embraces domain names per se; whether and to what extent it
>>> embraces domain names is certainly not a question answered in Ballantyne.
>>>>
>>>>
>>>> With regard to Gibson v. Texas - I don't want to dig too deeply
>>>> into this because, honestly, US law is not my specialisation. But I
>>>> think that part of the disconnect between our positions is due to a
>>>> particular aspect of the American understanding of free speech,
>>>> that's sort of different to how it's understood virtually
>>>> everywhere else. Under most systems, including the international
>>>> example I just cited, virtually everything is classed as "speech",
>>>> and then there's a balancing as to whether particular restrictions
>>>> are justified. But because of the absolutist way the US
>>>> Constitution is phrased ("Congress shall make no law"), the Courts
>>>> have had to go through some unusual legal gymnastics to find that speech that they feel justified restricting isn't actually speech.
>>>
>>>
>>> Simply reading the excerpt from Gibson v. Texas in my prior email
>>> shows that this "speech/not speech" analysis is incorrect. Gibson,
>>> and the cases cited in it, distinguish between protected speech and
>>> speech that that is "not to be protected." Specifically, Gibson
>>> mentions that "courts have held that domain names that use
>>> trademarks to misidentify the source of a product are outside the
>>> reach of the First Amendment" and also cites a line of cases where
>>> "the domain name was actually held not to be protected speech
>>> because it was not expressive, not because it was misleading." More
>>> broadly, the idea that the US approach to free speech is anomalous
>>> is incorrect. Of course, free speech regimes vary broadly
>>> throughout the world -- so there's no such thing as a single
>>> "understanding of free speech... virtually everywhere else" aside
>>> from the US. Unfortunately, there are many places in the world
>>> where there is no understanding of free speech at all.) If the US
>>> approach to free speech tends to be different, it is in a greater
>>> tolerance for controversial and offensive speech (what John Levine
>>> calls "the absolutist U.S. first amendment approach"). This is why
>>> US law doesn't find it so easy to restrict alleged "hate speech" as
>>> "virtually everywhere else", and also why I can't be so comfortable
>>> in finding "no conflict" between free speech and restricting hate
>>> speech. (And I say this as a member of a group that is finding
>>> itself increasingly on the wrong end of both offensive speech and
>>> hate speech.)
>>>>
>>>>
>>>> So, without trying to belabour these issues, my point in the above
>>>> is not to try and invalidate the trademark protection system -
>>>> indeed, Greg's quite right to point out that trademarks are also
>>>> speech. My point here is simply to try and demonstrate that there are free speech issues at play.
>>>
>>>
>>> It's clear that this is false as a general statement, unless this is
>>> meant as a statement that could possibly true in a large enough
>>> sample, like "people are 7 feet tall". Whether one looks at
>>> Ballantyne or Gibson, one sees clear distinctions being drawn being "subjective ideas and opinions"
>>> and speech that is "not expressive" or "inherently misleading."
>>> This is probably a good time to note that the UDHR and the ICCPR
>>> both refer to "freedom of expression" and not to "free speech." So,
>>> it would be more proper to discuss whether "expressive speech" is at
>>> issue, not whether the over-broad "virtually anything that conveys
>>> meaning" is at issue, before we even get to the question of whether
>>> free speech issues are at play, to what extent, and how that might
>>> affect any discussion that is relevant to this Working Group.
>>>
>>>>
>>>> To me, that's not a controversial point - and if we can agree on
>>>> that,
>>>
>>>
>>> I don't think we can agree on that, and certainly not as an assumed
>>> agreement from which one can proceed blithely on. Rather, I think
>>> that is an elemental aspect of the discussion, and as noted above,
>>> at best "controversial" and possibly sometimes true, and at worst
>>> false (at least as a general statement).
>>>
>>> As an aside, it's worth noting what Article 19 of the ICCPR actually
>>> protects: "the right to hold opinions without interference" and "the
>>> right to freedom of expression; this right shall include freedom to
>>> seek, receive and impart information and ideas of all kinds,
>>> regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
>>> other media of his choice." I admit to struggling to find instances where
>>> the right to hold opinions or to express oneself freely is truly
>>> being violated in this context -- especially in a world where
>>> holding or expressing an opinion can come under threat of
>>> oppression, suppression, violence, imprisonment or worse. As someone
>>> who strongly supports First Amendment rights and who has worked on
>>> litigation defending First Amendment freedoms, I wonder whether this
>>> discussion trivializes free speech concerns rather than promoting
>>> them. That is not to dismiss the possibility of free speech
>>> concerns here, but just to say that, to the extent there is a viable
>>> point here, it pales in comparison to the significant freedom of
>>> expression concerns elsewhere (including elsewhere on the Internet,
>>> where access to websites with undesirable opinions or expression, or even to the Internet as a whole, is under escalating attack).
>>>
>>>
>>>>
>>>> then that is relevant to the transparency question, since in my
>>>> mind it bolsters arguments for why openness in the system is important.
>>>
>>>
>>> I don't get the logical leaps here, from the possibility of a free
>>> speech issue, to the claimed relevance to the transparency question,
>>> to the even more attenuated idea that this bolsters arguments
>>> regarding changing access rules for the TMCH. In other words, I
>>> don't really think that any of this changes the discussion on TMCH
>>> database access, nor do I really think it is relevant to any of the
>>> work we are undertaking right now. That is not to say that this is
>>> an uninteresting discussion (or else I would not have engaged in it), just that it is a rabbit hole in relation to our work.
>>>>
>>>>
>>>> Best,
>>>>
>>>> Michael
>>>>
>>>> On Fri, Apr 7, 2017 at 2:19 AM, Greg Shatan
>>>> <gregshatanipc at gmail.com>
>>>> wrote:
>>>>>
>>>>> It's important to keep in mind that the rights set forth in the
>>>>> UDHR are interrelated and interdependent, so understanding the
>>>>> applicability of any one Article also requires understanding the
>>>>> applicability of the other rights in the UDHR, including some which may be countervailing to others.
>>>>> Looking at Article 19 in isolation is "cherrypicking." A recent
>>>>> CircleID article by John Levine is quite enlightening on this very point:
>>>>>
>>>>> http://www.circleid.com/posts/20170401_human_rights_and_regular_in
>>>>> ternet_users/
>>>>>
>>>>> The article is short, but for those who don't get there, this
>>>>> quote goes to the heart of the matter: "it devalues the whole
>>>>> topic of human rights to pay attention only to a few fashionable
>>>>> rights, while ignoring ones that are at least as important in people's daily lives."
>>>>>
>>>>> (It should also be noted that the UDHR, while adopted by the
>>>>> United Nations and widely used, does not constitute some form of "universal law"
>>>>> nor is it universally accepted.)
>>>>>
>>>>> The case mentioned, Gibson v. Texas, has portions that are
>>>>> directly applicable to the discussion at hand. However, the
>>>>> Gibson decision actually distinguishes cases involving trademarks from the situation in that case.
>>>>> As a matter of fact, the Gibson case tells us that there are at
>>>>> least two types of domain names that do not constitute speech
>>>>> protected by the First
>>>>> Amendment: domain names that infringe trademarks, and domain names
>>>>> that do not constitute "expressive speech."
>>>>>
>>>>> (In other words, there can be no "freedom of expression" issue
>>>>> when the speech is not expressive.)
>>>>>
>>>>> Before getting to an excerpt from the case, it's important to note
>>>>> that the court did not find that domain names are speech, much
>>>>> less find that domain names are speech protected by the First
>>>>> Amendment. The court made no findings about all domain names.
>>>>> Rather, the court assumed, for the purpose of considering a motion
>>>>> to dismiss, that the domain name in question
>>>>> (texasworkerscomplaw.com) constituted commercial speech. It's
>>>>> also important to note that the case involved the
>>>>> Constitutionality of a law that broadly prohibited the use of the
>>>>> terms "Texas" and "workers comp," and not a trademark infringement matter.
>>>>>
>>>>> The excerpt is quite instructive:
>>>>>
>>>>>
>>>>> In order for speech to fall outside of the First Amendment’s
>>>>> protection, the speech must either be “inherently likely to
>>>>> deceive,” or “the record [must] indicate[] that a particular form
>>>>> or method of advertising has in fact been deceptive.” R.M.J., 455 U.S. at 202.
>>>>>
>>>>>
>>>>> Appellees primarily argue that the Texas statute is constitutional
>>>>> because Gibson’s domain name amounts to inherently misleading
>>>>> speech. In support of this proposition, they cite to a series of
>>>>> cases in which courts have held that domain names that use
>>>>> trademarks to misidentify the source of a product are outside the
>>>>> reach of the First Amendment. The case law cited by Appellees,
>>>>> however, is unique to the field of trademark infringement, see,
>>>>> e.g., Coca-Cola Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and
>>>>> does not necessarily extend to a case such as this one, where
>>>>> Texas is prohibiting Gibson from using words that are otherwise in
>>>>> the public domain.[1] Cases involving trademark infringement
>>>>> involve inherently deceptive speech because they contain a
>>>>> significant risk that an infringing party will freeload on the goodwill that has been created by the original trademark. See Friedman, 440 U.S. at 11-16. No such risk is present here.
>>>>> Texas has made no showing that its own talents and energy
>>>>> contributed to the creation of any goodwill in the name
>>>>> “texasworkerscomplaw.com.” See San Francisco Arts & Athletics,
>>>>> Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34 (1987). Instead
>>>>> the regulation at issue is forward-thinking; intended to prohibit
>>>>> confusion for individuals seeking information from the government
>>>>> agency. It is not retrospective in the same way as most trademark
>>>>> litigation, which is generally intended to preserve the reputation
>>>>> that has been built upon a trade name. See Friedman, 440 U.S. at 11-16. Accordingly, the case law cited by Appellees is inapposite.
>>>>>
>>>>>
>>>>> ________________________________
>>>>>
>>>>> [1] In most of the cases cited by Appellees the domain name was
>>>>> actually held not to be protected speech because it was not
>>>>> expressive, not because it was misleading. See, e.g., Planned Parenthood Fed’n of Am. v. Bucci, No.
>>>>> 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997);
>>>>> Morrison & Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D.
>>>>> Colo. 2000); Jews for Jesus v. Brodsky, 993 F.Supp. 282, 286 n.1
>>>>> (D.N.J. 1998). Here, in contrast, Gibson’s domain name is
>>>>> expressive because it does more than simply mimic the state agency’s website or identify a source of Texas Workers’
>>>>> Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11.
>>>>> The domain name is intended to direct visitors to a forum for discussing workers’
>>>>> compensation laws and their potential reform, as well as to convey
>>>>> to visitors the message of Gibson’s website as a whole.
>>>>> Accordingly, in the context of this case, the domain name is
>>>>> “‘sufficiently imbued with the elements of communication’” to place it in the realm of expressive speech.
>>>>> Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir.
>>>>> 2000) (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).
>>>>>
>>>>> Greg Shatan
>>>>>
>>>>>
>>>>> Greg Shatan
>>>>> C: 917-816-6428
>>>>> S: gsshatan
>>>>> Phone-to-Skype: 646-845-9428
>>>>> gregshatanipc at gmail.com
>>>>>
>>>>>
>>>>> On Thu, Apr 6, 2017 at 10:58 PM, Michael Karanicolas
>>>>> <mkaranicolas at gmail.com> wrote:
>>>>>>
>>>>>> It's an interesting question. Different national courts have
>>>>>> handled the issue in different ways. In the US, for example, the
>>>>>> Fifth Circuit Court of Appeals found in Gibson v. Texas that
>>>>>> domain names are protected as speech under the 1st amendment. But
>>>>>> freedom of expression in the US context tends to be understood
>>>>>> differently than elsewhere, since the way it's protected under
>>>>>> the US constitution is a bit different from how most
>>>>>> constitutions frame their equivalent protections.
>>>>>>
>>>>>> That said - when you're asking about Article 19, the discussion
>>>>>> comes at the international level where, as far as I know, there's
>>>>>> no single authoritative treatment to point to. Generally,
>>>>>> discussions of Article
>>>>>> 19 by standard setting bodies tend to focus on the sharper and
>>>>>> more controversial issues: hate speech, defamation, national
>>>>>> security restrictions, etc.
>>>>>>
>>>>>> However - there's a clear and well developed test for
>>>>>> restrictions on freedom of expression that's built right into the
>>>>>> ICCPR, and which applies equally to all restrictions, namely that
>>>>>> they should be: (1) provided by Law (which includes a requirement
>>>>>> for clarity and transparency), (2) fulfill a legitimate purpose,
>>>>>> and (3) be necessary and proportionate to the achievement of that
>>>>>> goal. If we establish that domain names qualify as speech under
>>>>>> Article 19 (which, according to UN Human Rights Committee in Ballantyne, Davidson & McIntyre v.
>>>>>> Canada, is a fairly sure interpretation), then understanding the
>>>>>> applicability of Article 19 just means understanding that three
>>>>>> part test.
>>>>>>
>>>>>> If you want more info, I'd recommend this briefing note as a
>>>>>> useful (and concise!) introduction to restrictions on freedom of
>>>>>> expression under Article 19:
>>>>>>
>>>>>> http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-
>>>>>> briefingnotes-2.pdf
>>>>>>
>>>>>> Or if you want to go into a little more depth, you can check out
>>>>>> this
>>>>>> one:
>>>>>> http://www.law-democracy.org/live/wp-content/uploads/2012/08/Pape
>>>>>> r-on-Restrictions.10.03.22.rev_.pdf
>>>>>>
>>>>>> Unfortunately - neither is specifically about domain names, but
>>>>>> the discussion is basically analogous to how we understand other
>>>>>> kinds of restrictions and protections.
>>>>>>
>>>>>> On Thu, Apr 6, 2017 at 6:50 PM, Michael Graham (ELCA)
>>>>>> <migraham at expedia.com> wrote:
>>>>>>> Michael:
>>>>>>>
>>>>>>> Where can I find a discussion how Article 19 and similar
>>>>>>> "Freedom of Expression" requirements relate to or impact the
>>>>>>> registration of domain names?
>>>>>>>
>>>>>>>
>>>>>>> Michael R.
>>>>>>>
>>>>>>> Article 19.
>>>>>>> Everyone has the right to freedom of opinion and expression;
>>>>>>> this right includes freedom to hold opinions without
>>>>>>> interference and to seek, receive and impart information and
>>>>>>> ideas through any media and regardless of frontiers.
>>>>>>>
>>>>>>> -----Original Message-----
>>>>>>> From: gnso-rpm-wg-bounces at icann.org
>>>>>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Michael
>>>>>>> Karanicolas
>>>>>>> Sent: Thursday, April 06, 2017 5:53 AM
>>>>>>> To: J. Scott Evans <jsevans at adobe.com>
>>>>>>> Cc: gnso-rpm-wg at icann.org
>>>>>>> Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from
>>>>>>> the Working Group call held earlier today
>>>>>>>
>>>>>>> Once again - I have to jump in. Freedom of expression is very
>>>>>>> much a universal concept:
>>>>>>>
>>>>>>> http://www.un.org/en/universal-declaration-human-rights/
>>>>>>> http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
>>>>>>>
>>>>>>> That's why we call them "human" rights. Not "American" rights.
>>>>>>>
>>>>>>>
>>>>>>> On Thu, Apr 6, 2017 at 9:49 AM, J. Scott Evans via gnso-rpm-wg
>>>>>>> <gnso-rpm-wg at icann.org> wrote:
>>>>>>>> The law is clear: an exact match isn't free speech. It is
>>>>>>>> trademark infringement. A domain that coveys a message (e.g.,
>>>>>>>> hotels suck.com) is free speech and protected accordingly.
>>>>>>>> Also, "free speech" is a US constitutional concept adopted by some countries, but it is not a universal legal concept.
>>>>>>>> Perhaps universal free speech is aspirational, but it is not reality.
>>>>>>>>
>>>>>>>> Sent from my iPhone
>>>>>>>>
>>>>>>>>> On Apr 6, 2017, at 5:44 AM, George Kirikos <icann at leap.com> wrote:
>>>>>>>>>
>>>>>>>>> I'm not sure where J. Scott is getting his "facts", but my
>>>>>>>>> company doesn't "arbitrage" nor has it registered *any* new
>>>>>>>>> gTLD domain names (and I have no desire for any), nor is it a
>>>>>>>>> "bad actor." If you have proof that my company is a "bad
>>>>>>>>> actor", put it forward, rather than sling unsupported
>>>>>>>>> innuendo.
>>>>>>>>>
>>>>>>>>> The whole point is that the "barriers" are put forth as
>>>>>>>>> *required* to deal with so-called "bad actors", but are
>>>>>>>>> instead used to advantage certain groups, far beyond the
>>>>>>>>> "damage" that is claimed to be caused by the "bad actors."
>>>>>>>>>
>>>>>>>>> I don't want to delve into politics, but some might see
>>>>>>>>> parallels to certain government measures in some countries,
>>>>>>>>> where a "problem" is claimed, but a Draconian solution is applied to deal with it.
>>>>>>>>>
>>>>>>>>> When it comes to the sunrise periods for new gTLDs, the
>>>>>>>>> "problem" is claimed to be cybersquatting, but instead of
>>>>>>>>> relying on curative rights, the Sunrise policy went too far
>>>>>>>>> and gave too many advantages to TM holders, essentially
>>>>>>>>> creating an unlevel playing field between *good actors* and TM holders.
>>>>>>>>>
>>>>>>>>> Free speech means *no prior restraints* (with very rare
>>>>>>>>> exceptions), but harsh penalties for unlawful speech (curative rights).
>>>>>>>>>
>>>>>>>>>
>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.
>>>>>>>>>
>>>>>>>>> law.cornell.edu%2Fwex%2Fprior_restraint&data=02%7C01%7C%7C811d
>>>>>>>>> c6e8437
>>>>>>>>>
>>>>>>>>> 245583fce08d47cea9d30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7
>>>>>>>>> C0%7C63
>>>>>>>>>
>>>>>>>>> 6270794483518369&sdata=IyEiG%2FsY%2BTgJkYPGzDiGtCEbfBWA4SVgJ4g
>>>>>>>>> %2FOWfC
>>>>>>>>> H7s%3D&reserved=0
>>>>>>>>>
>>>>>>>>> Sincerely,
>>>>>>>>>
>>>>>>>>> George Kirikos
>>>>>>>>> 416-588-0269
>>>>>>>>>
>>>>>>>>> https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%
>>>>>>>>> 2Fwww.l
>>>>>>>>>
>>>>>>>>> eap.com%2F&data=02%7C01%7C%7C811dc6e8437245583fce08d47cea9d30%
>>>>>>>>> 7Cfa7b1
>>>>>>>>>
>>>>>>>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636270794483518369&sdata
>>>>>>>>> =6BJPNx
>>>>>>>>> olmCYrJK3jZ5%2B7ZFJhorIvFPrA11%2FRit4QYdY%3D&reserved=0
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>> On Thu, Apr 6, 2017 at 8:08 AM, J. Scott Evans
>>>>>>>>>> <jsevans at adobe.com>
>>>>>>>>>> wrote:
>>>>>>>>>> The same logic applies to you and other domaines,
>>>>>>>>>> cybersquatters, speculators and small businesses. The fact
>>>>>>>>>> that you want to arbitrage in terms that are also trademarks
>>>>>>>>>> is your choice and you have to deal with the barriers put in place to deal with the bad actors.
>>>>>>>>>>
>>>>>>>>>> Sent from my iPhone
>>>>>>>>>>
>>>>>>>>>>> On Apr 6, 2017, at 4:59 AM, George Kirikos <icann at leap.com> wrote:
>>>>>>>>>>>
>>>>>>>>>>> Hi folks,
>>>>>>>>>>>
>>>>>>>>>>>> On Thu, Apr 6, 2017 at 4:19 AM, Beckham, Brian
>>>>>>>>>>>> <brian.beckham at wipo.int> wrote:
>>>>>>>>>>>> Finally, since the chart references the EFF letter, it is
>>>>>>>>>>>> worth mentioning here that the fact that a trademark owner
>>>>>>>>>>>> may pay (sometimes extremely high
>>>>>>>>>>>> amounts) to defensively register a domain name exactly
>>>>>>>>>>>> matching its trademark in a Sunrise process (and thereby
>>>>>>>>>>>> taking it “off the
>>>>>>>>>>>> market”) does not prevent free expression, which may be
>>>>>>>>>>>> undertaken in countless other ways. The number of terms
>>>>>>>>>>>> that may be appended to a trademark (not to mention typos)
>>>>>>>>>>>> to engage in all manner of speech – fair or otherwise – is,
>>>>>>>>>>>> practically-speaking, all but limitless.
>>>>>>>>>>>
>>>>>>>>>>> By that "logic", the number of terms that may be appended to
>>>>>>>>>>> a common dictionary word (not to mention typos) to create a
>>>>>>>>>>> trademarkable brand is, practically-speaking, all but limitless.
>>>>>>>>>>> :-)
>>>>>>>>>>>
>>>>>>>>>>> In other words, those creating a new brand/trademark
>>>>>>>>>>> certainly had the opportunity to create a longer (and thus
>>>>>>>>>>> inferior) alternative to a commonly used dictionary word or
>>>>>>>>>>> other common term. The fact that they decided instead to
>>>>>>>>>>> choose a common term that is widely used by the public
>>>>>>>>>>> shouldn't give them any priority access in a launch of a new gTLD.
>>>>>>>>>>>
>>>>>>>>>>> "I created a problem for myself, and I want ICANN to fix it"
>>>>>>>>>>> is the essence of the sunrise argument for commonly used
>>>>>>>>>>> terms, like dictionary words and short acronyms.
>>>>>>>>>>>
>>>>>>>>>>> Sincerely,
>>>>>>>>>>>
>>>>>>>>>>> George Kirikos
>>>>>>>>>>> 416-588-0269
>>>>>>>>>>>
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