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

Thomas, Christopher M. christhomas at parkerpoe.com
Fri Apr 14 10:48:22 UTC 2017


+1 Greg

Sent from my iPhone

On Apr 14, 2017, at 1:01 AM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:

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<http://Amazon.net> has been owned  owned by a legitimate entity different from
the owner of Amazon.com<http://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<http://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<http://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<http://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<http://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<tel:416-588-0269>
http://www.leap.com/
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