[gnso-rpm-wg] Recommendation for Questions #7 and #16 (Design Mark and Appropriate Balance)

Thu Apr 27 02:59:18 UTC 2017

I agree that we are data poor.  We have spent some number of hours on this list, in calls, and in face to face meetings on the "what can we infer from a 90% abandonment rate."  Unfortunately, without any data from the abandonment event, the answer is nothing reliable.  One side reads into it that most everyone was chilled; another side reads into it that most everyone was a cybcersquatter.  No one can prove anything from the non-data.  This raises my prior suggestion that you, me, Kathy and other data-enthusiasts work on a proposed set of data to be collected by registrars in the second round following an abandonment during Claims.  This will help us fine tune the Claims notice for Round 3.  So far no one has taken me up on the offer, but it still stands.

Best,
Paul

-----Original Message-----
From: Rebecca Tushnet [mailto:Rebecca.Tushnet at law.georgetown.edu] 
Sent: Wednesday, April 26, 2017 9:46 PM
To: icannlists <icannlists at winston.com>
Cc: Silver, Bradley <Bradley.Silver at timewarner.com>; gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 (Design Mark and Appropriate Balance)

Yes, because we don't have good survey evidence, one of the questions is what we can infer from the circumstantial evidence available to us, particularly the over 90% abandonment rate combined with the top queries being words like forex, cloud, and love.  Maybe absolutely no one else besides the TMCH entrant/s had a legitimate business using those terms.  But I doubt it.
Rebecca Tushnet
Georgetown Law
703 593 6759

On Wed, Apr 26, 2017 at 10:37 PM, icannlists <icannlists at winston.com> wrote:
> Thanks Rebecca.  I've never heard of a trademark owner being deterred by a claims notice since one of the explicit defenses in the UDRP is when a registrant has rights or legitimate interests in a corresponding trademark.  So, I think that one may be a bit of a red herring.
>
> However, your comment about avoiding overreach is well received and we should keep it in mind while at the same time not under-reaching either - when we do that, Grandma gets phished.
>
> Best,
> Paul
>
>
>
> -----Original Message-----
> From: Rebecca Tushnet [mailto:Rebecca.Tushnet at law.georgetown.edu]
> Sent: Wednesday, April 26, 2017 9:17 PM
> To: icannlists <icannlists at winston.com>
> Cc: Silver, Bradley <Bradley.Silver at timewarner.com>; 
> gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 
> (Design Mark and Appropriate Balance)
>
> Avoiding overreaching is pro-trademark, as the public reaction to SOPA/PIPA and patent trolls has shown with respect to copyright and patent. There are also the interests of trademark owners who aren't participating in this process but may want to register domain names that are perfectly legitimate for their goods/services and jurisdictions.  Some of them may inevitably receive notices and be deterred, but there are steps we can take to limit that problem.
> Rebecca Tushnet
> Georgetown Law
> 703 593 6759
>
>
> On Wed, Apr 26, 2017 at 9:50 PM, icannlists <icannlists at winston.com> wrote:
>> Thanks Rebecca.  I'm not characterizing you as anti-trademark; just your arguments and positions to date on this list.  We would very much welcome anything favorable to trademarks that you wish to add to the discourse.
>>
>> Best,
>> Paul
>>
>>
>>
>> -----Original Message-----
>> From: Rebecca Tushnet [mailto:Rebecca.Tushnet at law.georgetown.edu]
>> Sent: Wednesday, April 26, 2017 8:00 PM
>> To: icannlists <icannlists at winston.com>
>> Cc: Silver, Bradley <Bradley.Silver at timewarner.com>; 
>> gnso-rpm-wg at icann.org
>> Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 
>> (Design Mark and Appropriate Balance)
>>
>> Please don't characterize me as anti-trademark; I strongly believe in 
>> the consumer protection function of trademarks, and also in trademark 
>> protection in some circumstances for business purposes.  See 
>> https://harvardlawreview.org/2017/01/registering-disagreement-registr
>> a tion-in-modern-american-trademark-law/
>>
>> Asking again: for those of you who think it doesn't matter if claimants who don't own relevant rights get to use the TMCH, what then did ICANN mean by its stated intent not to expand trademark rights?
>> Rebecca Tushnet
>> Georgetown Law
>> 703 593 6759
>>
>>
>> On Wed, Apr 26, 2017 at 8:46 PM, icannlists <icannlists at winston.com> wrote:
>>> Thanks Rebecca.  There is not much new here.  Whomever registers a second level domain name first (Sunrise - TM owner), Premium (Rich person) or Landrush (TM owner who didn't want to pay the Sunrise shakedown price or regular folks like all of us), someone gets the exclusive rights to that second level.  So, it is not just a question of if, but of when and who.  I think it is OK to just say "I don't want it to be a trademark owner."  Others will disagree, but we don't have to keep this in a mysterious context or otherwise try to layer on some free speech issue that doesn't exist.  Trademark owners want them first in order to protect their brands and consumers.  Others who are anti-trademarks don't want them to have them first and would prefer someone else gets the exclusive right.  Fair enough.  Now we see if we can get to consensus on changing the AGB.  I doubt we will, but at least the free speech veneer is pulled back.
>>>
>>> Best,
>>> Paul
>>>
>>>
>>>
>>> -----Original Message-----
>>> From: gnso-rpm-wg-bounces at icann.org
>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Rebecca Tushnet
>>> Sent: Wednesday, April 26, 2017 3:11 PM
>>> To: Silver, Bradley <Bradley.Silver at timewarner.com>
>>> Cc: gnso-rpm-wg at icann.org
>>> Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 
>>> (Design Mark and Appropriate Balance)
>>>
>>> By that logic the mandate not to expand on trademark rights would 
>>> have been pointless because no activity in domain name space could 
>>> ever have expanded trademark rights.  Call it a right, call it a 
>>> privilege, call it an alien from Xenon if you like, but ICANN did 
>>> not want trademark owners to be able to assert control over domain 
>>> names in excess of what underlying trademark law would have allowed.  
>>> Under the "nothing in domain names can expand trademark rights 
>>> because they're never exclusive" logic, was the ICANN direction 
>>> completely meaningless, or did it have some meaning?  (Trademark 
>>> rights, of course, are never "exclusive" either, which is why we can 
>>> use any examples we want in this discussion.) Rebecca Tushnet 
>>> Georgetown Law
>>> 703 593 6759
>>>
>>>
>>> On Wed, Apr 26, 2017 at 1:41 PM, Silver, Bradley via gnso-rpm-wg <gnso-rpm-wg at icann.org> wrote:
>>>> Jeremy - the TMCH does not allow exclusive rights in domains.  Having a mark in the TMCH affords nothing close an exclusive right.  That's a basic truth which shouldn’t be ignored.
>>>>
>>>> -----Original Message-----
>>>> From: gnso-rpm-wg-bounces at icann.org 
>>>> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Jeremy Malcolm
>>>> Sent: Wednesday, April 26, 2017 1:32 PM
>>>> To: gnso-rpm-wg at icann.org
>>>> Subject: Re: [gnso-rpm-wg] Recommendation for Questions #7 and #16 
>>>> (Design Mark and Appropriate Balance)
>>>>
>>>> On 26/4/17 9:00 am, Colin O'Brien wrote:
>>>>> Nice try Rebecca but I'm not attempting to overturn the apple cart.  If you have actual examples of problems then provide them otherwise this is an indulgent  academic exercise.
>>>>
>>>> The fact that the TMCH is allowing exclusive rights in domains that go beyond the equivalent rights in domestic trademark law is itself a problem if we accept that the TMCH was meant to track trademark law.
>>>>
>>>> --
>>>> Jeremy Malcolm
>>>> Senior Global Policy Analyst
>>>> Electronic Frontier Foundation
>>>> https://eff.org
>>>> jmalcolm at eff.org
>>>>
>>>> Tel: 415.436.9333 ext 161
>>>>
>>>> :: Defending Your Rights in the Digital World ::
>>>>
>>>> Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt
>>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
>>>>
>>>>
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