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

Greg Shatan gregshatanipc at gmail.com
Thu Apr 13 21:38:24 UTC 2017


George,

I'd be happy not to "waste money" on defensive registrations.  How do you
propose to replace the benefit that they give to those "defensive
registrants" (i.e., taking a domain out of circulation, where that
registrant is concerned about the potential abuse of that domain)?

Greg


*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com


On Thu, Apr 13, 2017 at 5:29 PM, J. Scott Evans via gnso-rpm-wg <
gnso-rpm-wg at icann.org> wrote:

> 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
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