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

Fri Apr 21 11:18:36 UTC 2017

Mary,

I was also confused.  Does this mean that the issue is being deferred along
with the other relevant questions to which it relates?

Paul

From:  <gnso-rpm-wg-bounces at icann.org> on behalf of Greg Shatan
<gregshatanipc at gmail.com>
Date:  Thursday, April 20, 2017 at 9:36 PM
To:  Mary Wong <mary.wong at icann.org>
Cc:  "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period

> 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 <mailto: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 Group¹s 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 <tel:(917)%20816-6428>
>> S: gsshatan
>> Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428>
>> gregshatanipc at gmail.com <mailto: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=FmY
>>> 1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5c
>>> jS_7sB4h6Y&m=bCDwHJ9c8HvqajRo0dYWXiOWLHf3FIlX18-Gs2yoXSs&s=6ocrizQJyAnlqR6w1
>>> 7-s11PdAffAdImS8XajwYvbLws&e=> >, as compared with,
>>> <thewebsitetoprotestunfairsunriseregistrations.com[thewebsitetoprotestunfair
>>> sunriseregistrations.com]
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__thewebsitetoprotestunfa
>>> irsunriseregistrations.com&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl
>>> 4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=bCDwHJ9c8HvqajRo0dYWXi
>>> OWLHf3FIlX18-Gs2yoXSs&s=_YXnlVWLLlaGShyk-9Vap70ls6nxkoWeedplm5mX_u0&e=> >.
>>> 
>>>  
>>> John
>>>  
>>> 
>>> From:gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at 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 Scott¹s 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 ³cost savings² 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 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:
>>>> 
>>>> I¹m 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 Œmight want to do in the future¹ 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 don¹t 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 TMCH¹s
>>>> 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 ³the², ³hotel², ³luxury², ³smart², ³one², ³love²,
>>>> and ³flower² 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.protec
>>>> tion.outlook.com_-3Furl-3Dhttps-253A-252F-252Feff.org-26data-3D02-257C01-25
>>>> 7C-257C0e18d5b07aea47943d4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c178decee
>>>> 1-257C0-257C0-257C636282416004172724-26sdata-3DLCpvg6fU-252FXkpw1fmAH8KzPJD
>>>> WABttoqafNYeotxdCiQ-253D-26reserved-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7m
>>>> WovpzN_EKyRbeK_zbP0&r=Kepk-9GEB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAk&m=0BR4m_4
>>>> UuTrbwX27PjR5nOwWB8isVOX2a3mrks6Ng-0&s=k7ODBCCErf9pQH25bKUJ1_8D4_De4J9UwNPd
>>>> pJ5tedY&e=> 
>>>> jmalcolm at eff.org
>>>>  
>>>> Tel: 415.436.9333 ext 161 <tel:(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.protec
>>>> tion.outlook.com_-3Furl-3Dhttps-253A-252F-252Fwww.eff.org-252Ffiles-252F201
>>>> 6-252F11-252F27-252Fkey-5Fjmalcolm.txt-26data-3D02-257C01-257C-257C0e18d5b0
>>>> 7aea47943d4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c178decee1-257C0-257C0-2
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>>>> wWB8isVOX2a3mrks6Ng-0&s=NJwl9YsuYqiLEMKMhSYy7fxrJOl1OckjOHw-cFVpg-I&e=>
>>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
>>>> 
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>>>> 16004182733-26sdata-3DfZ88VMsRjujGitQovRkGfOctUusd1sufOBNGSw97Kn8-253D-26re
>>>> served-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9G
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>>>> 33&sdata=fZ88VMsRjujGitQovRkGfOctUusd1sufOBNGSw97Kn8%3D&reserved=0
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>>>> tion.outlook.com_-3Furl-3Dhttps-253A-252F-252Fmm.icann.org-252Fmailman-252F
>>>> listinfo-252Fgnso-2Drpm-2Dwg-26data-3D02-257C01-257C-257C0e18d5b07aea47943d
>>>> 4408d4877c75c3-257Cfa7b1b5a7b34438794aed2c178decee1-257C0-257C0-257C6362824
>>>> 16004182733-26sdata-3DfZ88VMsRjujGitQovRkGfOctUusd1sufOBNGSw97Kn8-253D-26re
>>>> served-3D0&d=DwMGaQ&c=qmi9WrYRGQEDDOxOwKrAjW7mWovpzN_EKyRbeK_zbP0&r=Kepk-9G
>>>> EB6JgOj0vUGl8c0hdrRM7FW-8Is-VAQU1VAk&m=0BR4m_4UuTrbwX27PjR5nOwWB8isVOX2a3mr
>>>> ks6Ng-0&s=cIC2UBz3o_1bZxjHjx4pIGYYg6_R_EpFRKaEmSapeMs&e=>
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