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

Fri Apr 14 05:01:13 UTC 2017

George,

>
> 1. There is no need to "take a domain name out of circulation", if the
> domain name ends up in the hands of a good faith buyer using it in a
> different context.

That's a very, very, very, very, very big "if."  An "if" as big as all of
the domains that have been abused over the last 20 years, plus all the
defensive registrations purchased out of fear of abuse.  That could be in
the millions.  Anyone who has maintained a trademark and domain name
portfolio for a company or a celebrity knows how many abusive domain names
there are out there, and how many they have had to acquire (by various
means) over the years.  A world where there is no need for a company to
take a domain name out of circulation, because there was no need to do so
is a pipe dream.  

To use the example of "apple", why would Apple (of
> iPhone fame) care if Apple.recipes or Apple.menu is used for the
> actual posting of recipes for the fruit, etc?

I won't speak for Apple (since I don't represent them) but let's talk
about a hypothetical "Peach" company. If there was a 100% chance that
peach.recipes or peach.menu would only be used for recipes or other good
faith unrelated uses, that would be great for many companies. But there's
no way to know. 

> For a long, long time,
> Amazon.net has been owned  owned by a legitimate entity different from
> the owner of Amazon.com, for example.  The world hasn't ended....(and
> that's one less $10/yr renewal fee for Jeff Bezos' company).
>

I have no idea what Amazon would have been able to do with Amazon.net, and
I suppose we'll never know.  Of course, one could assume that domain names
don't really matter that much, but if that were the case, we'd never be
having this conversation. 

>
> 2. For those domains that *are* misused, reduce enforcement costs
> (i.e. financial penalties on the landrush registrant in a UDRP, that
> get paid directly to the victor, etc.).
>

A system that relies solely on enforcement puts a huge burden on the
brandowner, as Marc Trachtenberg has already noted.

>
> This goes back to a point that J. Scott and I had informal agreement
> on a while ago, namely that the "representations" section of the UDRP
> might need more "teeth"
>
> https://www.icann.org/resources/pages/policy-2012-02-25-en
>
> "2. Your Representations. By applying to register a domain name, or by
> asking us to maintain or renew a domain name registration, you hereby
> represent and warrant to us that (a) the statements that you made in
> your Registration Agreement are complete and accurate; (b) to your
> knowledge, the registration of the domain name will not infringe upon
> or otherwise violate the rights of any third party; (c) you are not
> registering the domain name for an unlawful purpose; and (d) you will
> not knowingly use the domain name in violation of any applicable laws
> or regulations. It is your responsibility to determine whether your
> domain name registration infringes or violates someone else's rights."
>
> There's little downside to that, for liars. Impose some on the "more
> sophisticated" (and those participating in landrush arguably are), and
> the economics of cybersquatting change. You'll note most
> cybersquatting happens on domains bought for less than $100 (i.e.
> registered at reg-fee, typically, of $10 or less). If there's a
> possibility of losing $5,000, that'd be more serious.
>
> Sunrise and landrush registrants arguably are "sophisticated", so
> raise the standards. Eliminate sunrise, and the sunrise demand (those
> 130 domains) shifts to landrush. What would then happen in landrush?
>
> Domains like Google.TLD, Adsense.TLD, Microsoft.TLD, etc. matching a
> famous brand would almost assuredly go to their (famous) markholders,
> if they applied during landrush (which presumably they would, if
> they're worried enough to apply in sunrise today). If there were
> multiple applicants (which seems to be your concern??),

No -- the concern is abusive registrations that would take advantage in
some fashion of association with the trademark.  Also, anything that is
limited to "famous" markholders is also a non-starter.

> what kind of
> idiot would be outbidding those firms, especially if there were actual
> financial penalties supplementing the existing UDRP?

A solution that involves trademark owners spending even more money, and
solving every problem by throwing money at the domain name industry, is a
non-starter.

> And if those
> famous firms did lose an auction, certainly they'd later win at UDRP,
> URS, etc. (unless those registrants simply sat on the domains and did
> absolutely nothing, which arguably is an even better outcome for the
> brand owners, since they're not paying the renewal costs! it might be
> a minor 'annoyance', but as long as there's no misuse, there's little
> harm)
>
> But, common dictionary terms like domains like Hotel.TLD, Flowers.TLD,
> etc., that previously were gamed in sunrise would now be opened up to
> landrush.

Based on the discussion earlier, it didn't seem to me that Flowers.tld was
"gamed" no matter what the definition of gaming.  I didn't dig through the
back and forth on hotel.tld.  I'm concerned with a lot of the accusations
of gaming that were made that didn't seem to hold water as they were
examined....

I would limit the discussion of gaming Sunrise to "faux trademark owners"
who obtained trademark registrations solely to get into the TMCH and then
register domains for resale during sunrise.  I like the Uniregistry
solution to that (eliminating profiteering on sunrise registrations)....

> That would kill the business model of the "gamers", since
> there'd be competition for those terms. [simplified analysis, since
> some of those would be marked 'premium' the way new gTLDs are handled
> now] The highest and best use for those terms wouldn't be
> cybersquatting-related.
>

Throwing more money at everything is not a solution. And I have no idea
whether 

>
> As an aside, as I noted in chat the other day, I'd also suggest
> reducing "carrying" costs for defensive registrations, by halving the
> registry fees for domain names with no nameservers. E.g. if you own
> the typo domain wwwbrand.com [note the lack of a dot between 'w' and
> 'b'], have it in the zone file, and are redirecting it to
> www.brand.com, registry costs would be unchanged (since the registrant
> is benefiting from the domain, and it's in the zone file). But, let's
> say you own BrandSucks.com or other "worthless" domains, and own it
> for purely defensive registration, with no nameservers so that it's
> not in the zone file and not resolving -- I'd chop the registry fees
> for those by half (or some other amount). Those are a complete waste
> of money. e.g. domains like those at:
>
> http://domainnamewire.com/2016/08/17/franklin-coveys-
> leader-defensive-domain-names/
> http://domainnamewire.com/2015/09/22/kaiser-registers-killing-domains/
>
> should be discounted (by the registry, and then savings passed along
> by registrars to registrants) if they're not in the zone file.
>
> So, if we can get the curative rights enforcement costs on brand
> owners lowered, and also reduce the incentives for cybersquatting
> (e.g. financial penalties losing UDRPs for domains registered in a
> landrush would kill demand too, besides compensating brand owners),
>

I don't think anything that depends solely on curative rights is going to
go anywhere.  This also ignores the "positive" idea behind sunrise -- that
trademark owners are going to register their brands as domains in new gTLDs
for the "right" reasons (to use them to offer goods and services using the
brand) and not for defensive reasons.  Sunrise is not solely a defensive
solution.

I'm also very skeptical about the idea of disincentivizing cybersquatters,
especially since many of them work on volume, so they'll find a way to cut
loose any domain where a challenge is being made without spending big
bucks.  Financial penalties on defaulting respondents is also not going to
solve anything, because they will be nowhere to be found.  That's not
really a reduction in costs (though I'd certainly be in favor of
considering damages in UDRP cases, but let's not jump the gun).  A
reduction in costs would have to be a reduction in spend, not the
possibility of compensation -- and the spend related to combating
cybersquatting goes way beyond the direct costs of a UDRP.

> would that be a step in the right direction? I really do think there
> are ways to "sunset" the entire sunrise system, while still leading to
> an overall "win" for everyone.
>

I appreciate the effort....

>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
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> gnso-rpm-wg at icann.org
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>
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