[gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

[George Kirikos]

Hi folks,

On Thu, Apr 13, 2017 at 4:35 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> Of course, that was an average of 130 sunrise registration per new gTLD, not
> 130 overall.  I think all of the numbers relating the new gTLD program have
> been quite a bit lower than expected, so sunrise registrations is just part
> of the larger trend.  Maybe the only number that has bucked that trend is
> percentage of cybersquatting and other forms of abuse in at least some of
> the new gTLDs.

No one claimed there were 130 overall. I implicitly multiplied by 1000
TLDs, when coming up with the numbers. Although, I did make a rounding
error. i.e. 65 x 0.02 = 1.3 [had mistakenly rounded that to "1"];
multiplying by 1000 and dividing by 4 = 325 extra UDRPs per year,
rather than 250. And that's $1.625 million/yr, rather than $1.250
million/yr.

Still, it's much less than what's being spent on TMCH-related costs,
especially when considering costs borne by registry operators,
registrars, and registrants.



> I also have to say that this statement is both false and insulting:
>
> I think many people are overly protective of the TMCH & sunrise period
> not because it's "working", but because it's an opportunity for extra
> consulting, revenue streams, etc. e.g. lawyers can tell their clients
> "get registered", and they can make money from the filing fees, etc.
> There's a huge amount of money being wasted, in my voice, that can be
> redirected to other things (like curative rights, better education,
> etc.).
>
> The stereotype of the greedy, money-grubbing lawyer who wants to suck up all
> their client's money rather than represent their client's best interests is
> as old as it is untrue (acknowledging that all profession/businesses have
> their bad actors, whether it's lawyers or domain investors).  Further, for
> anyone who has been following the discussion, it would be easy to notice
> that (a) a lot of this work is handled "in-house" so greed is even more
> ridiculous as a motivation and (b) most if not all of us are very concerned
> with being cost-effective and prudent (or else there would be many more TMCH
> registrations and less concerns about the strategic decisions around what to
> put in the TMCH).

Disagree, there's a lot of "scare mongering" to convince people to buy
things they ultimately don't need or benefit from. It's being sold as
a form of overpriced and ineffective insurance.

Consider how many people were convinced to register .XXX domain names,
needlessly. It wasn't just registries/registrars doing the scare
mongering.

The amounts wasted on defensive registrations, and TMCH (sold as an
alternative to defensive registrations) could better be directed
elsewhere.

Consider how Verizon sued iREIT, with excellent outcomes for them.
Much better result, and much greater deterrent effect than filing a
UDRP or giving a "TMCH  claims notice".

There's a scene in the 1989 Batman:

[Batman dangles a mugger over the side of a building]
Nic: Don't kill me! Don't kill me, man! Don't kill me! Don't kill me, man!
Batman: I'm not going to kill you. I want you to do me a favor. I want
you to tell all your friends about me.
Nic: What are you?
Batman: I'm Batman.

That's what Verizon did when they sued. I'm sure the "organized
industrial cybersquatters" heard that message loud and clear, and
cleaned their portfolios. Microsoft has done the same.

> Finally, the statement about "some who feel, wrongly, that they have
> exclusive rights to common dictionary terms, etc., which is
> not something the law supports," is just incorrect as a statement about the
> law, no matter how many times it is said.  Trademark law does not
> distinguish between whether a mark is an invented (a/k/a "fanciful" or
> "coined") term or a so-called "dictionary term" -- both can be equally valid
> and equally strong as a trademark.  (I won't rehash the discussion of "apple
> for apples" is generic and not protectable, but "apple for computers" is
> arbitrary and protectable, and that in between there are descriptive uses
> (which can be protectable) and suggestive uses (which are protectable),
> etc.)

You obviously misread what I wrote --- note the word "exclusive"
before "rights". Apple (of iPhone fame) has the most famous trademark
in the world, arguably, but even they don't have exclusivity over the
word 'apple' (NB: I'm a small shareholder in Apple, for disclosure).
It's a valid trademark, but others can certainly use it without
violating Apple's rights. Never claimed it was not protectable.

I think if one crunches the numbers, elimination of the TMCH and
sunrise would make obvious sense for registrars, registries, and
registrants. For most TM holders, it would  make sense, given I've
shown how post-registration curative rights would be made better for
them for any domains registered in landrush (higher standard to
register, with financial penalties). [i.e. the horse trading Phil
suggested] The math would probably work even without the horse
trading.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/