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

Fri Apr 14 18:11:09 UTC 2017

+ 1  Thanks, Michael – although I wonder if the differences are really as vast as they may seem.  I agree with you that only one registrant can ever register a domain name, and for that reason alone, domain names are unique.  However, and at the risk of completely splitting hairs here – on a Friday, no less – I don’t believe we can say that domain names themselves are really property, at least not in the sense that the investor/reseller/scalper crowd would have us all believe.  One cannot “own” a domain name any more than one can “own” a telephone number.  Rather, courts and other governmental/judicial bodies have recognized the right to register a domain name as an asset to be bought and sold, not the underlying domain itself.

I make this hair-splitting point simply for the purpose of trying to reign in what some people feel is an unfettered right to domain names, without regard to competing, valid rights – such as the right of the public not to be misled as to the source or purpose of a domain name (again re phishing, malware, etc.).  Like most other “rights”, the right to register a domain name is not absolute.

Marina

Marina A. Lewis
(415) 290-1245
marina at dns-law.com

From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Michael Graham (ELCA)
Sent: Friday, April 14, 2017 10:54 AM
To: Colin O'Brien <colin at PartridgePartnersPC.com>; 'Marie Pattullo' <marie.pattullo at aim.be>; policy at paulmcgrady.com
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

+1 Marie.  Unfortunately, domain names are much more like “property” than trademarks since each one can only be owned by a single entity.  Hence, the fundamental difference and source of conflict between the “ownership” and protection of trademarks and domain names, and the use and protection of speech and consumers.

Michael R.

From: gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Colin O'Brien
Sent: Friday, April 14, 2017 10:48 AM
To: 'Marie Pattullo' <marie.pattullo at aim.be<mailto:marie.pattullo at aim.be>>; policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>
Cc: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

+1 Marie, trademarks are at their heart are for consumer protection.

Colin Thomas Jefferson O’Brien
[PartridgePartners_logo_final (002)]
321 North Clark Street, Suite 720
Chicago, Illinois 60654
312-634-9503
http://www.partridge.partners/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.partridge.partners_&d=CwMGaQ&c=kqD9Q09X0_hF3XfnL01GEfIkP9-W7TXn6puQBrgMIlo&r=9-_oVnIkTFYkZzv8b5PGVZckJXV9d_c5sI_KGA4CFMQ&m=Dun2gPGoNhOgvtpfJFgCNhsEsF1r1qZZAGfEZ63PcqU&s=dcEs8IDDNmTr1H9cTMbFBrHidXnGIT9Xd63iQR0KkHI&e=>

From: gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Marie Pattullo
Sent: Friday, April 14, 2017 12:36 PM
To: policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>
Cc: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

+ 1 and thanks Paul.
TMs are a sign to a consumer of origin, and trust. I still have basic issues understanding why, having built and developed a brand based on trust, we should be the ones to pay, again, to prevent consumer harm caused by someone else choosing to maximise their financial gain at our expense, without any benefit to consumer welfare.
Marie

Sent from my iPhone, sorry for typos

On 14 Apr 2017, at 19:15, <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>> <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>> wrote:
Thanks George. I appreciate the candor contained in your paragraph:

"Under scenario 2, that ("legitimate", to separate it from scenario 1)
trademark owner can simply outbid (if need be, if others even desire
the term) the competition in the landrush. I wouldn't call that
"overreaching" to try to do so under that level playing field, the TM
doesn't give them any "bidding advantage" -- they'd have to pay more
than anyone else, using money (instead of being giving "first dibs"
under sunrise). Legitimate registrants without a TM are able to bid
too."

I will have to say "no thanks" to dismantling the RPMs so that they can be reassembled to ensure that every Sunrise is an auction-based dollar squeeze of brand owners.  I understand certain registries may be unhappy with how few Sunrise registrations trademark owners bought in the first round as many were financially dependent on trademark owners showing up to purchase them (even though we all warned applicants not to count on it).

I was secretly hoping that the "dismantle the RPMs" campaign had some free-speech motivation that, after several weeks, had yet to locate its rationale.   Clearly, this is just about money for certain registry operators (its almost always about money...sigh).  One good thing - at least the free speech-ish veneer is gone.

So, can we please get back to discussing incremental, implementable improvements to the RPMs (if any).

Best,
Paul

-------- Original Message --------
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the
TMCH
From: George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Date: Thu, April 13, 2017 4:20 pm
To: "gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>" <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>

Hi J. Scott,

Trimming the part re: confidentiality of the existing TMCH, to not get
side-tracked:

On Thu, Apr 13, 2017 at 6:51 PM, J. Scott Evans <jsevans at adobe.com<mailto:jsevans at adobe.com>> wrote:
> 1.) A party wanting to speculate with a name and wanting to ensure it gets the name files for a trademark registration is a jurisdiction where proving use to obtain registration is not require (96% of the jurisdictions). This party gets such a registration, dummies up some use and registers the trademark in the Clearinghouse; or
> 2.) A trademark owner has taken the decision that it must own its trademark in all new TLDs. While perfectly within the rights of a registrant in the Clearinghouse, this may be seen as overreaching by many parties.
>
> The examples that you and Rebecca and George have mentions (e.g., CLOUD, HOTEL) are dictionary terms. These could be genuine trademarks, but could also be more in the Category 1 above. So it seems to me that we need to come up with reasonable, efficient solutions that will solve these two issues. I don’t think you need to know the top 500 trademarks registered in the TMCH.
>
> ....So, let’s work on the parts where we have clear consensus.

Under my proposal (no sunrise, straight to landrush), there is no TMCH
at all, so those iffy TM registrations in scenario 1 don't provide any
benefit to the 'gamer'. One wouldn't need any TM at all to participate
in the landrush. Thus, scenario 1 gaming is eliminated, since there's
no presentation of any TMs at all to gain access to landrush.

Under scenario 2, that ("legitimate", to separate it from scenario 1)
trademark owner can simply outbid (if need be, if others even desire
the term) the competition in the landrush. I wouldn't call that
"overreaching" to try to do so under that level playing field, the TM
doesn't give them any "bidding advantage" -- they'd have to pay more
than anyone else, using money (instead of being giving "first dibs"
under sunrise). Legitimate registrants without a TM are able to bid
too.

If Apple (the iPhone maker) wanted to outbid every single entity for
Apple.menu, or Apple.recipes, they'd have the right to try. It's
likely a waste of shareholders money, but at least every other good
faith registrant had an equal chance on a level playing field to spend
their money to do the same. I would see absolutely nothing wrong if
they outbid everyone else.

The list of top 500 TM claims terms is useful to get a sense as to
whether people are trying to register terms like Verizon, Google,
Yahoo, etc., or if they're trying to register common terms. So far, it
seems from the evidence that we do have (the top 10), that people are
trying to register common terms. In other words, are the TMCH claims
notices scaring off mostly cybersquatters, or are they scaring off
registrants who want to register common terms that are widely used by
many entities?

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/
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