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

Fri Apr 14 00:16:06 UTC 2017

I am hating myself for wading back into this never-ending quagmire but two brief comments anyway…

1.       The Globally Protected Marks List will never work and has always been DOA when discussed because:

a.       People can ever agree on who should make the list; and

b.      It penalizes the vast majority of trademark owners that have been granted protection by the relevant authority but are not the biggest 100 brands in the world

2.       Your two week (or whatever the term is) proposal will not work for a variety of reasons including:

a.       Online abuse is increasingly in the form of email addresses created on the domain names, not content; and

b.      That requires all trademark owners to constantly monitor and take action against every potentially infringing domain name within 2 weeks, which is an unreasonable burden.  When they don’t the infringers will just start their infringing conduct at the beginning of the third week (or whatever period);

c.       Who will create this algorithm – ICANN?  Will it work as well as the string similarity algorithm for new gTLDS?

Best regards,

Marc H. Trachtenberg
Shareholder
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020
Mobile 773.677.3305
trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/>

[Greenberg Traurig]

From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
Sent: Thursday, April 13, 2017 6:56 PM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

While we're horse trading, let me bring up an additional thought. Someone else had brought up the (old) topic of a globally protected marks list. While that's been controversial, I think what could be done, if it's in conjunction with the changes I've suggested, is the development of a "globally abused" marks list, with an algorithm for pattern matching.
This would be for the smallest number of truly abused terms (e.g. "paypal", and other financial institutions), with evidence of past fraud, large history of numerous UDRP/URS cases, etc.
For those terms (say 100 or another 'small' number we can form a consensus around), registrations would not be blocked. Instead, domains that are triggered by the algorithm would not resolve for a certain period after registration (say 2 weeks). This allows for investigation by the various companies of new registrations, to take action before the domains resolve. It would also act as a deterrent, by reducing the benefits of registering them in the first place (i.e. register throwaway domain, abuse it immediately, then throw it away after being confronted). Those domains could get registration of 1 year + 2 weeks or (slightly longer), by the way, to ensure the inconvenienced registrant is made "whole".
There'd need to be a 'balancing" to prevent overreaching of which marks make the list (perhaps with human oversight, with balanced representation of stakeholders), and creation of false positives, but this would be another way to change the economics of cybersquatting and enforcement. Perhaps higher registrant validation (more than just testing that their email works) for those who can't wait 2 weeks.

Thoughts?

George Kirikos
416-588-0269
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=DbXb5NzRlFfySrpYFo5BVAT-tqlUAlOQnabB-JqgRYk&m=zjFGwh1dRH44jhWFwUGVIlB4bpPHci7AF3bh4WWFaxE&s=NNZJtoBuOyDa3XOvXoPfzwlIDmmDJrZYJHq0kBgEOpY&e= <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=GXD_SB8k_h0OLm6rd5cTTtWoISCeQ328o2_l7ZV8de8&s=w5OeEY8XLsSfiLUP_ODEkyRmNyEr3_b5KzxY7Fyw45I&e=>

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