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

J. Scott Evans jsevans at adobe.com
Thu Apr 13 21:29:17 UTC 2017


I have been involved in ICANN since its inception in 1998. While I agree that a fair number of attorneys have made some money dealing with DNS issues, I feel quite certain that very little of that came from either registering a client’s mark in the TMCH or counseling a client on Sunrise Registrations. Registries and Registrars have made a good bit of money on Sunrise registrations and Premium names and I see very few people vilifying their business modes.



J. Scott Evans
408.536.5336 (tel)
345 Park Avenue, Mail Stop W11-544
Director, Associate General Counsel
408.709.6162 (cell)
San Jose, CA, 95110, USA
Adobe. Make It an Experience.
jsevans at adobe.com
www.adobe.com
 
 
 

On 4/13/17, 2:10 PM, "gnso-rpm-wg-bounces at icann.org on behalf of George Kirikos" <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com> wrote:

    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
    https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7C59a2b91cb0e0421977d408d482b1877b%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636277146371486663&sdata=OpIpVtTXbHABOuid5hj9uAwwrZcEuzPIjJg%2B5sb%2Btas%3D&reserved=0
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