[gnso-rpm-wg] Recommendation for Question#10 (Appropriate Strings for Notification)

[Greg Shatan]

Clearly, we have people who are interested in defending the proposal.  Paul
McGrady has done so on this thread.  I'm certain the proposer is
"interested," as well.  We've also had some responses that are interested
in variations on the proposal, but still going beyond exact match.  We've
had almost nobody "interested" in disagreeing with the proposal.  The
upcoming meetings of the WG will be used to open up the discussion of the
various proposals, including this one.  I believe that was the game plan
all along.  So at best, it's both incorrect and premature to attempt to
call consensus in one direction or the other.  At worst, it seems like an
attempt to drown the proposal in the bathtub while nobody's watching.  The
general approach in ICANN WGs is to give any proposal a full and fair
hearing and opportunity for discussion, across at least a couple of
meetings.  Summary execution is not consistent with that approach.  I'll
give you the benefit of the doubt and believe that you were "shaking the
tree" rather than intended to cut off discussion before it even started.
It seem that has been the effect.  If that was your intent, thank you for
focusing us.

I would support an expansion beyond exact match for matching rules.  I
would suggest modifying the proposal to have more defined methods of
matching.  For example, typos of the mark and mark+keywords.  Keywords
could be derived from the trademark registration description or from either
registrant-defined or pre-defined lists of keywords, based on the goods and
services.  Typos could simply be determined in a fashion, either by the
registrant or by some formula or process.  Domain hacks should also be
considered (e.g., the trademark SALAD NINJA would be a match with
salad.ninja, as well as saladninja.ninja.  This would not require that
variations be registered in the TMCH.

This is consistent with the type of harms seen in the marketplace.  While
early UDRPs largely dealt with "exact match", the trend for quite some time
has been toward typosquats and mark+keyword violations.  The first wave of
UDRPs has seen more exact matches, but we can expect history to repeat
itself.  The TMCH should keep pace.

Greg


On Tue, Apr 25, 2017 at 2:32 PM Rebecca Tushnet <
Rebecca.Tushnet at law.georgetown.edu> wrote:

> That's because it came from words that weren't mine.
>
> If no one at all is interested in defending the "expanding the match"
> proposal that this thread is supposed to cover, does that mean that we
> have a consensus that it's not worth pursuing?  I'm not sure what the
> procedure for determining that would be.
> Rebecca Tushnet
> Georgetown Law
> 703 593 6759
>
>
> On Tue, Apr 25, 2017 at 2:23 PM, Paul Keating <paul at law.es> wrote:
> > I'm sorry but these 2 statements seem to be in conflict with each
> other.....
> >
> > I don't in fact think that the TMCH contains names of those individuals
> who've been wrongly deterred from registering domain names they had a right
> to register.
> >
> > As has been discussed for a while, I think it contains other relevant
> evidence, like more words like "cloud" and "hotel" that prima facie don't
> seem likely to justify preemptive rights across new gTLDs.
> >
> > I am more concerned about the latter but must say I really don't
> understand what is meant by the former.
> >
> >
> > Sent from my iPad
> >
> >> On 25 Apr 2017, at 16:22, Scott Austin <SAustin at vlplawgroup.com> wrote:
> >>
> >> I don't in fact think that the
> >>     TMCH contains names of those individuals who've been wrongly
> deterred
> >>     from registering domain names they had a right to register.  As has
> >>     been discussed for a while, I think it contains other relevant
> >>     evidence, like more words like "cloud" and "hotel" that prima facie
> >>     don't seem likely to justify preemptive rights across new gTLDs.
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-- 


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