[gnso-rpm-wg] Proposal for the elimination of Sunrise Period
J. Scott Evans
jsevans at adobe.com
Sat Apr 22 12:31:11 UTC 2017
Nicely done sir. Thoughts to ponder.
Sent from my iPhone
On Apr 22, 2017, at 5:26 AM, Kurt Pritz <kurt at kjpritz.com<mailto:kurt at kjpritz.com>> wrote:
Hi Everyone:
I am sympathetic with Greg’s comment that this discussion is premature. However, I could not help but think this through. This analysis is based more on practicalities and registry life-cycle rather than data (which has proven to be unavailable) or anecdote. Many of these points could stand additional elaboration but this note is long enough.
Recommendation:
1. Sunrise periods should be voluntary for registry operators
2. Trademarks Claims should be mandatory and perpetual (with a caveat described below as to whether they are perpetual or time limited)
Background:
1. The STI recommended that registries conduct a Sunrise or a Trademark Claims period. This approach was most likely based on: past practice leading up to the gTLD round where new registries always conducted one or the other; and affording new registries some freedom in selecting how they wanted to protect marks owners.
2. In practice, it is difficult to force registries to have a Sunrise period. Registries can just price Sunrise registrations in a way that effectively obviates the offering. There were no price controls in this (2012) round or the previous (2003-04) round and for very good reasons.
3. With a wave of its imperial wand, the GAC converted the “or” (as in Sunrise or Trademark Claims) to an “and,” ignoring past practice and the market realities stated above.
4. The STI also recommended that Trademark Claims last a period shorter than the current 90-days (60 days?), a period that was intended to coincide with the then-traditional landrush periods that preceded GA. This was because it was thought that domain investors who might infringe were more likely to obtain trademarked names in the land rush period. Also, by limiting the Claims period to land rush, registrars could participate in the start of General Availability without having to absorb the costs of implementing the Claims process.
5. Again, the GAC arbitrarily increased the Claims period to 90 days, effectively forcing registrars to bear the expense of administering claims or missing the first month or more of GA.
6. As the market has evolved, land rush periods have largely been abandoned and replaced with Early Access Periods that are part of General Availability so any registrar wanting to sell domains from the start of GA has to accommodate Claims.
7. There was no real pushback to the GAC interventions even though there were valid cases to be made. By that time new gTLD proponent were too weary, had waited too long, and were too extended by delays to consider extending the public debate. The GAC recommendations were accepted with little comment.
Summary: the Sunrise period was originally designed to be voluntary and it still is, in effect, voluntary – if registries price Sunrise registrations very high. The Claims period is of arbitrary length, there is no available data pointing to a 90-day or any other period.
Rationale: Making the Sunrise period voluntary and extending the Claims period to perpetuity will:
1. Does not change the “in-fact” status of Sunrise as voluntary but does avoid the reputation impact to the program when registries prohibitively price Sunrise registrations.
2. Will not likely impact the number of registries that conduct a Sunrise period. Registries conducted Sunrise periods in the past, they remain a revenue generating opportunity today, and most registries do seek a reputation for protecting IP rights.
3. If a registry wants to operate a Sunrise period, there is no justifiable way to bar that.
4. A Claims notice in perpetuity will accustom registrants to seeing the notice and promoting an understanding of its effect. Since a notice will not accompany every registration, it will still have meaning, but will not be such a surprise that it would be likely to deter an otherwise legitimate registration.
5. There is no real rationale for a Claims notice being of value on day x and not of value on day x=1. New entrants are entering the domain name industry each day and the value of Claims notices might even increase as the market evolves.
6. Registrars that have held off to date, would be obligated to find a way to implement Claims and all registrars will be able to participate from the opening of GA.
The one caveat is that last point and it has to do with a comment Jon Nevett made to another RPM list. I don’t understand the burden to registrars of implementing Claims notifications. (Remember, the IRT originally avoided this issue by limiting the length of the Claim period.) If it is demonstrated that implementing Claims is likely to put smaller registrars out of business or at a significant cost disadvantage, than I would reduce the recommended Claims period from perpetuity, back to 90 days.
Thx & regards,
Kurt
________________
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kurt at kjpritz.com<mailto:kurt at kjpritz.com>
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Skype: kjpritz
On Apr 21, 2017, at 11:38 AM, Paul Keating <Paul at law.es<mailto:Paul at law.es>> wrote:
Brian,
I. Free Speech.
I completely disagree with your statement that:
"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.²
Your position imposes a qualitative aspect to speech and presumes that
because you see other avenues available that must mean that speech is not
impinged. It also ignores that the protection extends to not only w hat
is said but HOW it is said.
The correct analysis is the following:
1. Is speech curtailed in any manner
2. If yes then assess
A, The reason for the restriction;
B,. The identity of WHO is regulating the speech; and,
C. The availability of lesser intrusive means of achieving the reason
(goal) while minimizing restrictions of speech.
Restricting speech for commercial reasons is subject to a very high
standard. I see no basis, for example, to application of the private
property/shopping center type cases.
Speech comes in all flavors and one must not qualitatively influence the
analysis simply because you agree or disagree with what is being said and
HOW it is being said.
II. Balancing the costs.
Also, the removal is not limited to ONE domain. It is extended to all
sunrise extensions so at last could could involve over 1,500 instances.
There is good reason to explore alternatives that focus on curative rights
and not right by prescription. For example,
Retain the UDRP approach
Inclusion of the mark within the TMCH is conclusive evidence as to the
1st Element
The notification process would eliminate the issue of knowledge
The cost of a UDRP complaint is less than $5,000, including attorney time
and the 3-member panel fees;
The vast majority of all UDRPs are defaults
III. Less Intrusive Methods.
Further, I would like to see the impact of the TMCH notice process in
terms of the number of notices sent and the number of domain registrations
subsequently gently abandoned following notice. If a significant
abandonment rate exists it would show a lesser intrusive means of
accomplishing the result instead of simply awarding a monopoly on domain
names to trademark holders.
Regards,
Paul
On 4/21/17, 9:56 AM, "Michael Graham (ELCA)"
<gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> on behalf of migraham at expedia.com<mailto:migraham at expedia.com>> wrote:
+1
-----Original Message-----
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 icannlists
Sent: Thursday, April 20, 2017 4:46 AM
To: Beckham, Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>
Cc: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
Agree Brian and J Scott!
Sent from my iPhone
On Apr 20, 2017, at 5:40 AM, Beckham, Brian
<brian.beckham at wipo.int<mailto:brian.beckham at wipo.int><mailto:brian.beckham at wipo.int>> wrote:
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 at icann.org><mailto: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<mailto:gnso-rpm-wg at icann.org><mailto: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<mailto:gpmgroup at gmail.com><mailto: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<mailto:jmalcolm at eff.org><mailto: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
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