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

Kathy Kleiman kathy at kathykleiman.com
Wed Apr 12 15:34:11 UTC 2017


Hi Kiran,

Could we kindly avoid allegations of "twisting and manipulating" as 
these are not polite terms, and Professor Tushnet certainly deserves 
politeness.

A 94% turnback rate, with bulk access, is certainly Far Higher than 
anything we expected in designing this system, as as Phil Corwin points 
out, "would seem to indicate we should explore practical means of 
reducing any deterrent effect on legitimate registrations."

I am sure you are receptive to fixing legitimate problems, as am I. 
Looking forward to this discussion in TM Claims. Certainly a problem 
seems to have been identified...

Best, Kathy


On 4/11/2017 1:25 PM, Kiran Malancharuvil via gnso-rpm-wg wrote:
> That is certainly not what I'm saying (as usual, you're twisting and manipulating). All I'm saying is that the numbers are not a reliable indicator of, as you stated, "an effect on non-trademark owners" that would justify the overhaul of the system, and breach of confidentiality that you are advocating.
>
> K
>
> Kiran Malancharuvil
> Policy Counselor
> MarkMonitor
> 415-419-9138 (m)
>
> Sent from my mobile, please excuse any typos.
>
>> On Apr 11, 2017, at 10:20 AM, Rebecca Tushnet <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>
>> If you think that those over 90% of abandonments don't represent true
>> abandonments but are mostly just tests/checkups, how does that affect
>> our estimate of how much time and money people are spending per
>> cybersquatter deterred, since by hypothesis every test/checkup lookup
>> is also not a cybersquatter deterred?  If you really believed that,
>> query whether we shouldn't just rely on the URS. Also, if they are
>> mostly just tests/checkups, why are the top ten downloads dictionary
>> terms not strongly associated with brands in any category? That seems
>> a fairly unusual pattern to emerge by accident.
>> Rebecca Tushnet
>> Georgetown Law
>> 703 593 6759
>>
>>
>> On Tue, Apr 11, 2017 at 1:02 PM, Kiran Malancharuvil
>> <Kiran.Malancharuvil at markmonitor.com> wrote:
>>> You'll note, Rebecca, that I didn't reference bulk downloads by registrars. That is a different technical function than what I mention.
>>>
>>> Kiran Malancharuvil
>>> Policy Counselor
>>> MarkMonitor
>>> 415-419-9138 (m)
>>>
>>> Sent from my mobile, please excuse any typos.
>>>
>>>> On Apr 11, 2017, at 9:44 AM, Rebecca Tushnet <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>>
>>>>  From the audit report, page 8:
>>>> We investigated the data for the presence of bulk downloads by
>>>> searching for simultaneous
>>>> downloads of more than one TMDB record by a given registrar. The vast
>>>> majority of registrars making
>>>> downloads of multiple TMCH trademark strings had average download
>>>> sizes of fewer than five strings,
>>>> with the exception of downloads by two registrars, whose average
>>>> download size was larger than 20
>>>> TMCH records per download. However, we cannot be certain whether the
>>>> large download sizes by these
>>>> two registrars were associated with actual domain registration
>>>> attempts or not. For analyses that rely on a
>>>> count of registration attempts, we conduct the analysis both including
>>>> and excluding these registrars. As is
>>>> demonstrated in Section V, both approaches yield relatively similar results.
>>>>
>>>>
>>>> Rebecca Tushnet
>>>> Georgetown Law
>>>> 703 593 6759
>>>>
>>>>
>>>> On Tue, Apr 11, 2017 at 12:37 PM, Kiran Malancharuvil
>>>> <Kiran.Malancharuvil at markmonitor.com> wrote:
>>>>> Rebecca,
>>>>>
>>>>> The 90% "abandonment" rate more likely (or at least equally likely) indicates a high number of inquiries from automated systems querying the TMCH. That has been discussed extensively. Registry operators have admitted querying registrations for that reason. Registrars query registration systems to test entries made on behalf of clients, etc.
>>>>>
>>>>> Kiran
>>>>>
>>>>> Kiran Malancharuvil
>>>>> Policy Counselor
>>>>> MarkMonitor
>>>>> 415-419-9138 (m)
>>>>>
>>>>> Sent from my mobile, please excuse any typos.
>>>>>
>>>>>> On Apr 11, 2017, at 9:31 AM, Rebecca Tushnet <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>>>>
>>>>>> 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/
>>>>>>> _______________________________________________
>>>>>>> gnso-rpm-wg mailing list
>>>>>>> gnso-rpm-wg at icann.org
>>>>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>>> _______________________________________________
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