[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Tue Apr 11 16:31:02 UTC 2017

The over 90% abandonment rate in response to matches shown in the
audit strongly suggests an effect on non-trademark owners. "Some
circumstantial evidence is very strong, as when you find a trout in
the milk."

That was also a pretty sharp turn from "there's no evidence" to "you
have all the evidence you need."
Rebecca Tushnet
Georgetown Law
703 593 6759

On Tue, Apr 11, 2017 at 12:08 PM, Michael Graham (ELCA)
<migraham at expedia.com> wrote:
> George:  The evidence that is missing is evidence of the effect on non-trademark owners of Sunrise registrations.  As to gaming of the Sunrise situations, I would consider these to be evidence of a need for review of the TMCH registration process and requirements -- not evidence of free speech incursions.
>
> Michael R.
>
> -----Original Message-----
> From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
> Sent: Tuesday, April 11, 2017 7:00 AM
> To: Jon Nevett <jon at donuts.co>
> 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
>
> Since Donuts is calling into question the Flowers.delivery example (and there are other TLDs operated by Donuts where Flowers.TLD is registered by 1-800-Flowers.com), let's pick a registry not operated by Donuts, namely .miami (operated by Minds+Machines).
>
> Timeline of Launch:
>
> https://comlaude.com/news/new-gtld-updates-miami-launch-schedule
>
> Sunrise Period Closed: 18-Sep-15 (16:00 UTC) Sunrise Type: End Date Sunrise (not first-come, first served) **(implies all domains got created after sunrise, but before launch of General Availability) General Availability: 02-Oct-15 (16:00 UTC)
>
> Please note that there will be no Landrush phase for this TLD.
>
> https://whois.domaintools.com/flowers.miami
>
> Creation Date: 2015-09-28T17:38:01Z
>
> (registrant: 1-800-FLOWERS.COM, INC.)
>
> NB: Notice that the date above is *before* General Availability, implying it was registered in Sunrise.
>
> Oldest WHOIS history at DomainTools is a few days later:
>
> https://research.domaintools.com/research/whois-history/search/?q=flowers.miami&date=2015-10-02&origin=permalink
>
> Domain ID: 1095074-MMd1
> Domain Name: flowers.miami
> WHOIS Server: whois-dub.mm-registry.com
> Updated Date: 2015-10-01T14:07:07Z
> Creation Date: 2015-09-28T17:38:01Z
> Registry Expiry Date: 2016-09-28T17:38:01Z Sponsoring Registrar: CSC Corporation Service Company Sponsoring Registrar IANA ID: 299 Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
>
> Registrant ID: 34106-Minds
> Registrant Name: Domain Administrator
> Registrant Organization: 1-800-FLOWERS.COM, INC.
> Registrant Street: One Old Country Road, Suite 500 Registrant City: Carle Place Registrant State/Province: NY Registrant Postal Code: 11514 Registrant Country: US Registrant Phone: +1.5162376000 Registrant Phone Ext:
> Registrant Fax: +1.5162376101
> Registrant Fax Ext:
> Registrant Email: domainadmin at 1800flowers.com
>
> If we compare the creation date of flowers.miami, it's the same (give or take a few seconds) as Google.miami:
>
> https://whois.domaintools.com/google.miami
>
> Creation Date: 2015-09-28T17:38:25Z
>
> or Yahoo.miami:
>
> https://whois.domaintools.com/yahoo.miami
>
> Creation Date: 2015-09-28T17:38:28Z
>
> or Adsense.miami:
>
> https://whois.domaintools.com/adsense.miami
>
> Creation Date: 2015-09-28T17:37:57Z
>
> All of which were presumably registered via Sunrise.
>
> I'm not going to go through all 1000+ TLDs to check Flowers.TLD (I'd quickly use up all my DomainTools limits! Plus, I have a life.)
>
> But, 1-800-Flowers.com also owns Flowers.Yokohama
>
> https://whois.domaintools.com/flowers.yokohama
>
> and that's not operated by Donuts or by Minds+Machines (it's by GMO Registry). Its creation date is  2014-08-05T06:40:00.0Z
>
> whereas the landrush was a day later:
>
> https://ie.godaddy.com/help/about-yokohama-domain-names-11994
>
> "From August 6, 2014 at 3:00 UTC to September 5, 2014 at 14:59 UTC, customers can purchase .yokohama domain names at a premium price."
>
> Flowers.yokohama has the same creation date/time (to the exact second) as:
>
> Google.Yokohama:
>
> https://whois.domaintools.com/google.yokohama
>
> Creation Date: 2014-08-05T06:40:00.0Z
>
> or Yahoo.Yokohama
>
> https://whois.domaintools.com/yahoo.yokohama
>
> Creation Date: 2014-08-05T06:40:00.0Z
>
> and these would clearly be sunrise registrations.
>
> Is there a (Tunisian) trademark of 1-800-Flowers.com for "FLOWERS" in the TMCH? If so, is it sunrise eligible? If so, are they using it to get Flowers.TLD before anyone else can, in sunrise periods?
>
> If ICANN wants to subsidize higher limits for a DomainTools account, and give me a per diem, I can find more examples, if the above isn't compelling enough evidence.
>
> Or, we can open up the TMCH and see what's hiding there.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
>
>
> On Tue, Apr 11, 2017 at 9:27 AM, George Kirikos <icann at leap.com> wrote:
>> So, if Flowers.delivery *wasn't* a Sunrise registration, then if we
>> examined the TMCH we wouldn't find any recordals (past or present) for
>> "FLOWERS" by 1-800-Flowers.com that were sunrise eligible??
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>> On Tue, Apr 11, 2017 at 9:24 AM, George Kirikos <icann at leap.com> wrote:
>>> How was it created before EAP began, then? Yahoo.delivery and
>>> USPS.delivery weren't sunrise either?? (same creation dates/times,
>>> give or take a few seconds)
>>>
>>> Sincerely,
>>>
>>> George Kirikos
>>> 416-588-0269
>>> http://www.leap.com/
>>>
>>>
>>>
>>> On Tue, Apr 11, 2017 at 9:15 AM, Jon Nevett <jon at donuts.co> wrote:
>>>> George:
>>>>
>>>> All I'm saying is that flowers.delivery wasn't a sunrise registration.  I'm not commenting on your other points.
>>>>
>>>> Jon
>>>>
>>>>
>>>>
>>>>> On Apr 11, 2017, at 9:06 AM, George Kirikos <icann at leap.com> wrote:
>>>>>
>>>>> Hello,
>>>>>
>>>>> On Tue, Apr 11, 2017 at 8:52 AM, Jon Nevett <jon at donuts.co> wrote:
>>>>>> That one is not a smoking gun.  It is a legitimate registration by a legitimate entity.
>>>>>
>>>>> So, let me get this straight. Are you saying that if my company
>>>>> went out and registered a TM in some obscure jurisdiction like
>>>>> Tunisia, for the brand MATH, in the goods and services of "math
>>>>> education", used that mark in the TMCH to register MATH.TLD domains
>>>>> ahead of every other competitor in the math industry during
>>>>> sunrise, and then redirected the resulting domains to Math.com,
>>>>> that would be a "legitimate registration by a legitimate entity"?
>>>>>
>>>>> I think most people would say "George, you gamed the system." and rightly so.
>>>>>
>>>>> Sincerely,
>>>>>
>>>>> George Kirikos
>>>>> 416-588-0269
>>>>> http://www.leap.com/
>>>>
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