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

Fri Apr 14 01:50:44 UTC 2017

George,

This is not realistic nor fair.  Basically you are doling out protection based solely on ability to pay, which is contradictory and unfair to the trademark owners with statutory and other rights granted by the relevant governmental authorities.  It also does not reflect the status quo - the status quo is the RPMs as they currently exist.

With that, let's agree to disagree as I do not feel like getting 500 emails from you over the rest of the week.

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 | www.gtlaw.com

-----Original Message-----
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 8:00 PM
To: gnso-rpm-wg
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

Hi Marc,

Thanks for taking the time to wade in. See responses below:

On Thu, Apr 13, 2017 at 8:16 PM, <trachtenbergm at gtlaw.com> wrote:
> 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

For 1(a), if an "objective" standard can't be agreed to using an algorithm, the easiest way to allocate it is to auction off the slots (sealed bid auction, regular basis, and the 100th highest bid sets the price for everyone who bid that much or higher, if it's 100 slots).
Presumably, the brands who benefit the most from being on it (e.g.
Paypal, some other banks, etc.) would bid the most (and rationally, they'd bid an amount *less* than the incremental benefit it would deliver, so they'd each still be better of than the "status quo" of "do nothing").

For 1 (b), it doesn't "penalize" them -- the status quo would still be the status quo for them. If we're trying to find solutions for everyone, we're never going to get anywhere. Let's try going after lower hanging fruit.

> 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?

For 2(a), if the domain name is not registered, but not in the zone file (no nameservers), then the email address won't be able to receive incoming email. And, outgoing email purporting to be from that domain would be easily caught in spam filters (i.e. just like a sender sending email with a "from" of a non-existent existent domain name today).

For 2(b), this is only for the "top" abused marks, who presumably are
*already* monitoring freshly registered domain names to assess their "riskiness". Miscreants have the advantage currently of a real-time registration system. Reduce that advantage, for those top abused marks, and their economics change. You don't need to actually *see* the abusive behaviour on certain domain names, to know that they're abusive -- often you can tell just by looking at the domain name itself (e.g. domains that have variations of Paypal with hyphens, extra words, etc.).

For 2(c), definitely not ICANN! (nor the people who designed SWORD!) Hold a competition. There are certainly algorithms out there used to assess risk already, and assign a risk score to a domain name. Have them duke it out, on a regular basis. With artificial intelligence and deep learning these days, it's a different world than 10 years ago.
Artificial intelligence can identify videos of cats, and can nearly drive! Abusive domain names are much simpler problem sets. Establish training sets, and automated systems can do a pretty good job of identifying potentially malicious domain names before they're even used. As an example, go to:

https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wipo.int_amc_en_domains_casesx_list.jsp-3Fprefix-3DD-26year-3D2017-26seq-5Fmin-3D1-26seq-5Fmax-3D199&d=DwIGaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=3_cmWI5IvWqQ-HAhbBxb5ub86wUCVliau44quKZA_kQ&s=0OHfRYM14EpQbwysI15uJ68LFGIEn8kPPmhr6Pmm4D8&e= 

to see the first 200 UDRPs filed at WIPO in 2017, and hide all but the 2nd column. I'm confident you can predict the outcome successfully in most cases, just by looking at the domain name itself, and nothing more (not even knowing the complainant, not even knowing the TM involved, registrar, etc.). Do an "out of sample" test with 200 upcoming UDRPs, and I'm sure you'd get similar results. You've developed heuristics, and those can be taught to a machine.

For a freshly domain name risk score, one has potentially even more information than just the domain name (e.g. the fields in the WHOIS) with which to refine the risk assessment. e.g see:

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.domaintools.com_products_reputation-2Dscoring_&d=DwIGaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=3_cmWI5IvWqQ-HAhbBxb5ub86wUCVliau44quKZA_kQ&s=u_qob463KSZmz-bYk8fmyi3PEtB8dzdfH9QyS-xeOhc&e= 

(I'm sure there are others)

Sincerely,

George Kirikos
416-588-0269
https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=3_cmWI5IvWqQ-HAhbBxb5ub86wUCVliau44quKZA_kQ&s=u05106BZsQHODgNV8xEm1aLP_k_4g0zdM7E7r57RYI8&e=
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