[gnso-rpm-wg] Proposal for the elimination of Sunrise Period

Thu Apr 20 19:36:50 UTC 2017

Mary,

Thanks.  I'm not sure what that means, but I'll wait to see what the
co-chairs say.

Greg

*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com

On Thu, Apr 20, 2017 at 3:32 PM, Mary Wong <mary.wong at icann.org> wrote:

> Hello Greg and everyone,
>
>
>
> As the call for proposals was intended to solicit recommendations that
> address the open questions on the TMCH structure and scope (Questions 7, 8
> and 10) the potential overlap with a Sunrise discussion has been noted for
> the co-chairs.
>
>
>
> Cheers
>
> Mary
>
>
>
> *From: *<gnso-rpm-wg-bounces at icann.org> on behalf of Greg Shatan <
> gregshatanipc at gmail.com>
> *Date: *Thursday, April 20, 2017 at 11:47
> *To: *"gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
> *Subject: *Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise
> Period
>
>
>
> Co-chairs, all:
>
>
>
> Before responding to the substance, isn't this a premature submission?
>
>
>
> First, it seemed clear that we were asked to submit proposals regarding
> the Trademark Clearinghouse itself -- not RPMs such as Sunrise, Claims, etc.
>
>
>
> Second, it seemed clear that the proposals should be specific to the four
> TMCH questions still open: 7 (TMCH handling of design marks), 8 (TMCH
> handling of geographical indications, protected designations/appellations
> of origin), 10 (retaining, modifying or expanding TMCH matching rules) and
> 15 (confidentiality/privacy of TMCH Database). All other TMCH
> questions "either been deferred for further review following the Working
> Group’s discussion of Sunrise and Claims Notifications, or agreed as not
> requiring further discussion at this time."
>
>
>
> I see that the proposal comes from someone who just joined the group as a
> member, so perhaps they were simply ignorant of the requirements.  However,
> it's my understanding that when you join a WG midstream, you need to get
> familiar with the WG's prior work and you can't reopen a prior WG decision
> unless you have significant new information.  I appreciate the "passionate
> intensity" that causes one to "rush in."*   But I think we have enough on
> our hands in dealing with the proposals that are on-topic.
>
>
>
> Also, didn't we just set up 3 subgroups for the next module of WG work --
> including one to deal with Sunrise (the subject of this submission)?  The
> subgroups' work is just beginning, while we wrap up our TMCH
> module. Discussing Sunrise here and now in the full WG seems to thwart our
> work plan.
>
>
>
> As such, it seems that consideration of this submission needs to be
> deferred until the Sunrise Subgroup reports back to the WG, referred to
> that subgroup, withdrawn, or rejected.
>
>
>
> If the co-chairs decide to move forward in the full WG now, I think they
> have to do the following as well:
>
>    - Keep the proposal submission window open for another 2-3 weeks, so
>    that other WG members can submit proposals on other Phase One topics aside
>    from the TMCH -- Sunrise, Claims, URS, and other proposed/potential RPMs
>    (i.e., everything but UDRP).
>    - Suspend the work of the Subgroups so that we are not working on two
>    tracks.
>    - Suspend discussion of this proposal until other Sunrise proposals
>    are received, so they can be discussed together.
>
> If the co-chairs decide to move forward on this, I'll respond on
> substance. But I'll hold off for now, since I don't want to clog the email
> list with off-topic submissions.  However, if the discussion just moves
> forward, I'll have to jump in so I don't miss the chance to contribute to
> the discussion.
>
>
>
> Expectantly,
>
>
>
> Greg
>
>
>
> * Note that the works of W.B. Yeats and Alexander Pope are in the public
> domain....
>
>
>
> *Greg Shatan *C: 917-816-6428 <(917)%20816-6428>
> S: gsshatan
> Phone-to-Skype: 646-845-9428 <(646)%20845-9428>
> gregshatanipc at gmail.com
>
>
>
> On Thu, Apr 20, 2017 at 9:55 AM, John McElwaine <
> john.mcelwaine at nelsonmullins.com> wrote:
>
> In addition, I believe it is overstating the issue to assume that all
> domain names are protected speech.  As an initial matter, U.S. courts
> appear to be split on this issue, and furthermore, one needs to look at the
> domain name to make this determination. For instance, there is a big
> difference in the expressive nature of <abcd.com[abcd.com]
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__abcd.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bCDwHJ9c8HvqajRo0dYWXiOWLHf3FIlX18-Gs2yoXSs&s=6ocrizQJyAnlqR6w17-s11PdAffAdImS8XajwYvbLws&e=>>,
> as compared with, <thewebsitetoprotestunfairsunriseregistrations.com[
> thewebsitetoprotestunfairsunriseregistrations.com]
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__thewebsitetoprotestunfairsunriseregistrations.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bCDwHJ9c8HvqajRo0dYWXiOWLHf3FIlX18-Gs2yoXSs&s=_YXnlVWLLlaGShyk-9Vap70ls6nxkoWeedplm5mX_u0&e=>
> >.
>
>
>
> John
>
>
>
> *From:* gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces@
> icann.org] *On Behalf Of *Beckham, Brian
> *Sent:* Thursday, April 20, 2017 6:39 AM
> *To:* J. Scott Evans <jsevans at adobe.com>; Paul Tattersfield <
> gpmgroup at gmail.com>; gnso-rpm-wg at icann.org
>
>
> *Subject:* Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise
> Period
>
>
>
> To add support to J Scott’s comment:
>
>
>
> When a trademark owner pays a premium to defensively register a domain
> name exactly matching its trademark in a Sunrise process this *does not*
> prevent free expression; *it does however* protect consumers by
> preventing potential misrepresentation under that particular string.
>
>
>
> In weighing the respective costs and benefits, it is difficult to see how
> the current system whereby one domain name is removed from circulation to
> prevent consumer harm / trademark abuse should be eliminated because it
> *may* prevent speech from that one particular outlet in a universe of
> virtually countless other available outlets.
>
>
>
> In any event, Jeremy, this group would no doubt find any examples you may
> be aware of, of actual speech chilling (particularly speech that could not
> be undertaken elsewhere) because of a Sunrise registration, quite useful.
>
>
>
> Finally, the claimed “cost savings” formula below is far too simplistic;
> the harm that can occur e.g., through one domain name-occasioned phishing
> campaign alone (in the time it takes to apply the cure) could upend that
> entire equation many times over.
>
>
>
> Brian
>
>
>
> *From:* gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces@
> icann.org <gnso-rpm-wg-bounces at icann.org>] *On Behalf Of *J. Scott Evans
> via gnso-rpm-wg
> *Sent:* Thursday, April 20, 2017 1:51 AM
> *To:* Paul Tattersfield
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise
> Period
>
>
>
> We keep hearing all these outlandish claims of the poor folks cheated out
> of an opportunity to express themselves or start a new business, but no
> real proof. I hear all the same arguments I have heard since 2009 and from
> the same groups with no proof. I also see no new voices claiming any of
> this alleged harm. What I see is a group of stakeholders with an anti-IP
> agenda making the same old arguments hoping to trim back consensus
> solutions where compromises based on these arguments have already been made.
>
>
>
> J. Scott
>
> Sent from my iPhone
>
>
> On Apr 19, 2017, at 4:33 PM, Paul Tattersfield <gpmgroup at gmail.com> wrote:
>
> I’m not sure I agree. The Claims Notices are likely to have a far bigger
> impact on people not registering domains especially those who are not
> professional registrants and have not seen a claims notice before.
>
>
>
> No Claims Notices should be issued without a substantive review of the
> underlying goods and services.
>
> The idea that anyone can buy a piece of paper without any real goods or
> services to protect and can then use that piece of paper to discourage
> others from building real world businesses simply because some
> jurisdictions give out those pieces of paper out like confetti under the
> pretext of ideas they ‘might want to do in the future’ should be deeply
> frowned upon by anyone participating in ICANN.
>
> Paul
>
>
>
> On Wed, Apr 19, 2017 at 7:56 PM, Jeremy Malcolm <jmalcolm at eff.org> wrote:
>
> Open questions 7 and 8 illustrate how the protections provided to
> trademark holders through the TMCH have been applied too broadly by the
> provider, opening the door for gaming and abuse by trademark holders, and
> chilling of speech by affected third parties. This proposal also bears on
> question 16 (Does the scope of the TMCH and the protections mechanisms
> which flow from it reflect the appropriate balance between the rights of
> trademark holders and the rights of non-trademark registrants?).
>
> It has been seen that the TMCH has facilitated trademark owners claiming
> exclusive rights in domain names that they don’t exist in domestic
> trademark law, such as words incorporated into design marks. Open question
> 10, rather than addressing the potential for abuse, actually suggests a
> measure that would allow even more non-trademarked terms to be locked up by
> priority claimants.
>
> As a measure to address these problems, we propose eliminating the TMCH’s
> Sunrise Registration service altogether. Although we also have concerns
> about its Trademark Claims service and will likely propose its elimination
> separately at a later date, the Sunrise Registration service is the most
> urgent to eliminate, because it creates an absolute bar to third parties
> registering domains that a Sunrise registrant has already claimed, whereas
> the Trademark Claims service results in a warning to third parties but does
> not absolutely preclude them from registering.
>
> We believe that the elimination of Sunrise Registrations would be the
> simplest way to address the problems of gaming and abuse that have been
> observed by working group members, not only in respect of design marks and
> geographical words, but also the misuse of dubious trademarks over common
> dictionary words such as “the”, “hotel”, “luxury”, “smart”, “one”, “love”,
> and “flower” to lock up domains unrelated to the original trademark.
>
> If the Sunrise Registration system were widely used by trademark holders,
> then it might be claimed that its elimination was disproportionate—but as
> we have seen, this is not the case. There have been only about 130 Sunrise
> Registrations per new domain.  Such a small number of claims could be more
> simply and efficiently handled simply by allowing those claimants to resort
> to curative mechanisms such as the UDRP in the event that a third-party
> registrant beats them to registering a domain over which they might have
> made a claim.
>
> The benefits of the elimination of Sunrise Registrations would be:
>
> ·         An overall cost saving.
>
> ·         Streamlining of the public availability of domains in new
> registries.
>
> ·         Elimination of the potential for gaming and abuse by putative
> trademark holders who claim rights over domain names that do not correspond
> to their domestic trademark rights.
>
> The costs would be:
>
>    - Some trademark holders would be required to resort to curative
>    proceedings if domain names over which they have a legitimate claim are
>    registered by third parties.
>
> --
>
> Jeremy Malcolm
>
> Senior Global Policy Analyst
>
> Electronic Frontier Foundation
>
> https://eff.org <https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protection.outlook.com_-3Furl-3Dhttps-253A-252F-252Feff.org-26data-3D02-257C01-257C-257C0e18d5b07aea47943d4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c178decee1-257C0-257C0-257C636282416004172724-26sdata-3DLCpvg6fU-252FXkpw1fmAH8KzPJDWABttoqafNYeotxdCiQ-253D-26reserved-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAk&m=0BR4m_4UuTrbwX27PjR5nOwWB8isVOX2a3mrks6Ng-0&s=k7ODBCCErf9pQH25bKUJ1_8D4_De4J9UwNPdpJ5tedY&e=>
>
> jmalcolm at eff.org
>
>
>
> Tel: 415.436.9333 ext 161 <(415)%20436-9333>
>
>
>
> :: Defending Your Rights in the Digital World ::
>
>
>
> Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt <https://urldefense.proofpoint.com/v2/url?u=https-3A__na01.safelinks.protection.outlook.com_-3Furl-3Dhttps-253A-252F-252Fwww.eff.org-252Ffiles-252F2016-252F11-252F27-252Fkey-5Fjmalcolm.txt-26data-3D02-257C01-257C-257C0e18d5b07aea47943d4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c178decee1-257C0-257C0-257C636282416004172724-26sdata-3DL5mf1H52yrjTzEUH1k0ZD7QleNH6oCdZhT3B7-252FDCW1Y-253D-26reserved-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAk&m=0BR4m_4UuTrbwX27PjR5nOwWB8isVOX2a3mrks6Ng-0&s=NJwl9YsuYqiLEMKMhSYy7fxrJOl1OckjOHw-cFVpg-I&e=>
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