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

[Paul Keating]

So wE are to 

presume there is gaming/abuse, 

guess at what types of gaming/abuse have occurred,

Then propose a solution based upon the above?

And all because of an argument that the TMCH database is confidential notwithstanding there being neither contractual nor a legal basis for such an argument?

And when one side proposes limitations on the type of TMCH data being requested (to address the confidentiality argument)  opposition says it ism"chasing a rathole"?

Now it is suggested that we merely rely upon peoples memory and presumptions....  

Doesn't sound like an effective (or correct) way to co duct our affairs.

Sent from my iPad

> On 13 Apr 2017, at 20:59, George Kirikos <icann at leap.com> wrote:
> 
> Hi folks,
> 
> (changing the subject accordingly)
> 
> On Thu, Apr 13, 2017 at 2:15 PM, J. Scott Evans via gnso-rpm-wg
> <gnso-rpm-wg at icann.org> wrote:
>> I think all of this is a huge red herring. If my memory serves me, there
>> have only been about 130 Sunrise Registrations. That is a very small number
>> when compared to the number of second level domains registered in the new
>> TLDs. I think it is safe to assume that there has been some gaming. We don’t
>> need to do an exhaustive investigation. What we need to do is look at
>> reasonable solutions to the gaming problem. I have not seen any proposals
>> for you on how to handle the problem. We need to close down this
>> unproductive discussion and move on to finding solutions to the problem of
>> gaming.
> 
> These numbers stand for the proposition that the sunrise period should
> be entirely eliminated, given that folks concede it "is a very small
> number", and thus is not conferring many benefits to those who
> register them defensively, since they're not utilizing the procedure.
> And the gaming that does exist is amplified, since it means that a
> higher percentage of the sunrise registrations are gamed. It could be
> that 30%, or even 50% of sunrise registrations are gamed, given the
> various blog posts and examples provided to this mailing list already
> (and how many others might exist "under the radar", that some folks
> are trying to keep hidden due to the lack of transparency of the
> TMCH).
> 
> Consider a "thought experiment" as to what would happen if Sunrise
> registrations and the TMCH were eliminated. Those 130 registrations
> would shift to either landrush or to general availability.
> 
> For those who are "gaming" the sunrise, they'd now be on an equal
> footing as everyone else.
> 
> For those legitimate TM holders, they can either register in landrush
> (or general availability), *or* they have curative rights protection
> mechanisms (courts, cease and desist letters, UDRP, URS, etc.) *if*
> domains which conflict with their TM rights are registered by someone
> else and misused.
> 
> I could even support a "hybrid" (horse trading, as Phil called it
> yesterday) model, where landrush imposed **additional burdens** on
> registrants, e.g. paying costs if they lose a UDRP), but then that
> extra burden is eliminated during general availability (as it is
> today). This way, TM holders and legitimate end users who don't have
> trademarks but have non-conflicting uses, etc. are on equal footing
> during a landrush.
> 
> 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.).
> 
> Suppose that of the 130 sunrise registrations, half of them got
> registered by legitimate TM owners in landrush. Of the 65 that were
> registered by someone else, how many of those would actually be cases
> of cybersquatting? I would suggest it's a small number, given the
> overall stats of UDRPs relative to registrations. Even if it was a
> massive 2% (actual percentage is much, much lower), that might mean 1
> extra UDRP per TLD? With 1000+ TLDs launched over 4 years, that might
> mean an extra 250 UDRPs per year. That's a relatively negligible
> amount.
> 
> If the "all-in" costs of those 250 UDRPs (lawyers fees + filing fees)
> is $5,000 or so, that's $1.25 million/yr.
> 
> TMCH revenues, by contrast, are on the order of $5 million/yr for
> Deloitte. And perhaps another $5 million or more per year for all the
> TM agents, etc. filing on behalf of clients. Let's call it $10
> million+ for TMCH-related fees on those using that system.
> 
> Trading $10 million/yr in "preventive" costs for $1.25 million/yr in
> "enforcement" costs -- that's a no-brainer for TM holders.
> 
> And if, as I argued above, if some of those UDRP enforcement costs are
> shifted to the losers (for landrush registrations), then the economics
> are even that much stronger for the elimination of the sunrise period
> (since that $1.25 million becomes even lower, due to cost recovery).
> 
> And of course, a system that has no landrush definitely benefits
> ordinary registrants and prospective registrants who simply want a
> "good" name, or at least a fair chance at one, and don't want to see
> "THE" or "FLOWERS" or "HOTEL" or all of the other common words being
> grabbed in sunrise.
> 
> Processes would be simplified for registry operators and registrars,
> if sunrises and TMCH were eliminated, which saves them money (which
> gets passed along as savings for consumers). TLDs would launch faster,
> too. The best second-level strings would be "spread around" more,
> which is probably a good thing (except to some who feel, wrongly, that
> they have exclusive rights to common dictionary terms, etc., which is
> not something the law supports).
> 
> So, I hope folks will give serious consideration to what would happen
> if sunrise was completely eliminated. With a few small tweaks (as
> noted above), it could be much better than we have for most people
> (except for those exploiting the current system).
> 
> Sincerely,
> 
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> 
> P.S. I know I've not written much above about the TM Claims notice
> aspect of the TMCH, but those are obviously have a chilling effect,
> with a 96%+ abandonment rate of registrations. A 90 day claims notice,
> which determined cybersquatters are going to ignore anyway, simply
> confuses legitimate registrants. The "ongoing notifications service"
> aspect of the TMCH is available through other companies, e.g.
> DomainTools or other domain monitoring services.
> 
> P.P.S. Some might argue that you can never collect $5K from
> registrants if they lose a UDRP. Shift some of that to the registrar,
> who can then police their own clients, a sort of "know your client"
> rule for those participating in landrushes. One can even envision a
> system of insurance, so that those who are involved in risky domain
> name registrations pay higher "insurance" (to indemnify their
> registrars) than less risky registrants who don't engage in
> cybersquatting. Or require a deposit at the start of the UDRP process
> (if one side doesn't post a deposit, they'd be in default).
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