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

Paul Keating Paul at law.es
Thu Apr 27 14:37:55 UTC 2017


Several comments on this thread.

1. The RA is not a curative rights mechanism.  It obligates Registrars to
investigate and respond.  It does not require any curative action ­ nor
should it for that would make the rights holder the prosecutor as well as
judge and jury..  Nor from a  practical point of view do registrars make
enough money to expect them to police the issue.

2. >@Greg wrote:  If we want to make assumptions that support arguments,
rather than engaging in evidence-based inquiry,Š..²   With all respect, lets
stop this line as it leads nowhere.  We need facts and we should be
focussing on identifying the sources of evidence so that we can have an
intelligent conversation and reach reasoned decisions.  We should try not to
be advocates for our respective positions by, for example, attempting to
block investigative efforts for fear of what they might uncover.

PRK



From:  <gnso-rpm-wg-bounces at icann.org> on behalf of Paul Tattersfield
<gpmgroup at gmail.com>
Date:  Thursday, April 27, 2017 at 4:23 PM
To:  "J. Scott Evans" <jsevans at adobe.com>
Cc:  "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] Fwd: Recommendation for Questions #7 and #16
(Design Mark and Appropriate Balance)

> J Scott wrote:
> 
> "A letter or call to a registrar is FAR more complex at effective than a UDRP
> action. Unfortunately, the former rarely results in the behavior being stopped
> and the later does"
> 
> This should be a serious matter for ICANN compliance.
> 
> Best regards,
> 
> Paul.
> 
> On Thu, Apr 27, 2017 at 3:21 PM, Paul Tattersfield <gpmgroup at gmail.com> wrote:
>> This should be a serious matter for ICANN compliance.
>> 
>> On Thu, Apr 27, 2017 at 12:30 PM, J. Scott Evans <jsevans at adobe.com> wrote:
>>> A letter or call to a registrar is FAR more complex at effective than a UDRP
>>> action. Unfortunately, the former rarely results in the behavior being
>>> stopped and the later does.
>>> 
>>> Sent from my iPhone
>>> 
>>> On Apr 27, 2017, at 3:14 AM, Beckham, Brian <brian.beckham at wipo.int> wrote:
>>> 
>>>> Paul,
>>>>  
>>>> It is important to look at the actual language of section 3.18 of the RAA.
>>>> This provides that registrars ³shall take reasonable and prompt steps to
>>>> investigate and respond² to allegations of illegal activity.
>>>>  
>>>> Looking at this carefully crafted contract language, it is easy to see that
>>>> taking reasonable steps is subject to interpretation, just as is the
>>>> corresponding obligation to investigate and respond.  This is in no way
>>>> meant to suggest that registrars are not complying with their ICANN
>>>> obligations, but whether those obligations necessarily address the claimed
>>>> illegal behavior and achieve the result sought is another matter
>>>> altogether.  RPMs on the other hand are specifically designed with criteria
>>>> to assist a substantive determination (which the registrar need only
>>>> implement).
>>>>  
>>>> Indeed, the very fact that we have a working group dedicated to address
>>>> ongoing claims of trademark abuse suggests that some claimed abuse is not
>>>> being addressed through this RAA provision (which by the way is titled ­ my
>>>> emphasis: ³Registrar¹s Abuse Contact and Duty to Investigate Reports of
>>>> Abuse²).
>>>>  
>>>> Quickly:  searching WIPO¹s public case database for the term ³fraud²
>>>> produces 1066 results
>>>> (http://www.wipo.int/amc/en/domains/search/fulltext_decisions.jsp?tab=1&q=f
>>>> raud&rows=20 
>>>> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.wipo.i
>>>> nt%2Famc%2Fen%2Fdomains%2Fsearch%2Ffulltext_decisions.jsp%3Ftab%3D1%26q%3Df
>>>> raud%26rows%3D20&data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1
>>>> b5a7b34438794aed2c178decee1%7C0%7C0%7C636288848838788516&sdata=ObK9VTHBPGru
>>>> fXw9rVbAeMSmPR4LDiAFv6UouawPAgw%3D&reserved=0> ), searching for ³phishing²
>>>> yields 659 results
>>>> (http://www.wipo.int/amc/en/domains/search/fulltext_decisions.jsp?tab=1&q=p
>>>> hishing&rows=20
>>>> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.wipo.i
>>>> nt%2Famc%2Fen%2Fdomains%2Fsearch%2Ffulltext_decisions.jsp%3Ftab%3D1%26q%3Dp
>>>> hishing%26rows%3D20&data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa
>>>> 7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636288848838788516&sdata=EPAoSFpvz
>>>> SW0q%2BAll7SLMLN62KSXT8rpyo9IUPlRtIA%3D&reserved=0> ), etc.
>>>>  
>>>> If those instances of claimed abuse could be solved with a simple request
>>>> to the registrar, trademark owners might be saved the time and expense of
>>>> invoking RPMs.  It is therefore difficult to see what is ³incorrect² about
>>>> this ³narrative² which is based on actual cases, not assumptions.
>>>>  
>>>> Best regards,
>>>>  
>>>> Brian   
>>>>  
>>>> From:gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org]
>>>> On Behalf Of Paul Tattersfield
>>>> Sent: Thursday, April 27, 2017 11:16 AM
>>>> To: Rebecca Tushnet
>>>> Cc: gnso-rpm-wg at icann.org
>>>> Subject: Re: [gnso-rpm-wg] Fwd: Recommendation for Questions #7 and #16
>>>> (Design Mark and Appropriate Balance)
>>>>  
>>>> 
>>>> Greg, a similar line of thinking was used by WIPO in response to the
>>>> initial Report on IGO Access to Curative Rights Protection Mechanisms.
>>>> https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/
>>>> msg00000.html 
>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fforum.ica
>>>> nn.org%2Flists%2Fcomments-igo-ingo-crp-access-initial-20jan17%2Fmsg00000.ht
>>>> ml&data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794a
>>>> ed2c178decee1%7C0%7C0%7C636288848838788516&sdata=JbNkJvGhH91k%2BoSORw6sLtAI
>>>> Fc%2Bb8pRJeBnZ2nBu67g%3D&reserved=0>
>>>> 
>>>> It is troubling if this line of thinking is held within the wider ICANN
>>>> community, especially so, if this line of thinking is held by those seeking
>>>> to change the current RPMs.
>>>> 
>>>> A much better understanding of the underlying issues is needed if we are to
>>>> better protect the goods and services of all rights holders through better
>>>> RPMs and at the same time build a more equitable framework for all.
>>>> 
>>>> My reply 
>>>> https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/
>>>> msg00038.html 
>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fforum.ica
>>>> nn.org%2Flists%2Fcomments-igo-ingo-crp-access-initial-20jan17%2Fmsg00038.ht
>>>> ml&data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794a
>>>> ed2c178decee1%7C0%7C0%7C636288848838788516&sdata=PhO4Rkkg5jPCnI0AZtXula%2Fn
>>>> Z3cx834B3tUc5xAXSqQ%3D&reserved=0>  to WIPO¹s comments demonstrates on a
>>>> very simple level how your assumptions set an incorrect narrative which
>>>> sends people off in the wrong direction when seeking to solve the problem.
>>>> 
>>>> RPMs are not the best way of dealing with the kind of bad behaviour you
>>>> cite. A far better approach is to use section 3.18 of the 2013 Registrar
>>>> Accreditation Agreement (RAA) which requires registrars to take action
>>>> against this sort of behaviour.
>>>> 
>>>> The advantage of using the 3.18 approach is it doesn¹t require any domain
>>>> name infringement to take action which means all of the bad behaviour
>>>> involving a domain cited by yourself and WIPO can easily be dealt with and
>>>> without any costs beyond the time spent identifying offending sites and
>>>> requesting their suspension.
>>>> 
>>>> Paul
>>>> 
>>>>  
>>>> 
>>>> On Thu, Apr 27, 2017 at 6:08 AM, Rebecca Tushnet
>>>> <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>> What would lead cybersquatters to choose common terms that, while
>>>> protectable for specific goods or services, are not generally known
>>>> for those meanings, as opposed to APPLE or MICROSOFT or other strong
>>>> marks?  That seems like a poor cybersquatting strategy, especially
>>>> done retail rather than wholesale.
>>>> 
>>>> Circumstantial evidence is evidence too.
>>>> Rebecca Tushnet
>>>> Georgetown Law
>>>> 703 593 6759 <tel:703%20593%206759>
>>>> 
>>>> On Thu, Apr 27, 2017 at 1:03 AM, Greg Shatan <gregshatanipc at gmail.com>
>>>> wrote:
>>>>> > We have no idea who abandoned these registration attempts, or even if it
>>>>> was
>>>>> > done by humans, much less rightsholders.
>>>>> >
>>>>> > If we want to make assumptions that support arguments, rather than
>>>>> engaging
>>>>> > in evidence-based inquiry, I'll offer the assumption that all the
>>>>> abandoned
>>>>> > carts were started by cybersquatters that intended to use the domains to
>>>>> > engage in spam, malware, phishing, spearphishing, fraud, theft and
>>>>> botnet
>>>>> > farming.
>>>>> >
>>>>> > Greg
>>>>> >
>>>>> >
>>>>> > On Wed, Apr 26, 2017 at 11:27 PM Rebecca Tushnet
>>>>> > <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>>>> >>
>>>>>> >> Forwarding to match.
>>>>>> >>
>>>>>> >> If you think that lots of people have valid uses--including rights--in
>>>>>> >> those terms, then when they stop trying to register those terms, that
>>>>>> >> is overdeterrence.  I think what I said was clear.
>>>>>> >>
>>>>>> >> Rebecca Tushnet
>>>>>> >> Georgetown Law
>>>>>> >> 703 593 6759 <tel:703%20593%206759>
>>>>>> >>
>>>>>> >>
>>>>>> >> On Wed, Apr 26, 2017 at 11:03 PM, Greg Shatan
>>>>>> <gregshatanipc at gmail.com>
>>>>>> >> wrote:
>>>>>>> >> > Your guess -- and overdeterrence is just a guess, with nothing to
back
>>>>>>> >> > it up
>>>>>>> >> > -- is as good as mine.  My guess is that it absolutely is not
>>>>>>> >> > overdeterrence.
>>>>>>> >> >
>>>>>>> >> > And my point was that your statement was a mischaracterization of
the
>>>>>>> >> > way
>>>>>>> >> > the TMCH, Sunrise and Claims work, as well as a mischaracterization
of
>>>>>>> >> > how
>>>>>>> >> > trademarks work.  So I don't think "My point exactly" is what you
>>>>>>> meant
>>>>>>> >> > to
>>>>>>> >> > say (though I wish it were).
>>>>>>> >> >
>>>>>>> >> > Greg
>>>>>>> >> >
>>>>>>> >> > Greg Shatan
>>>>>>> >> > C: 917-816-6428 <tel:917-816-6428>
>>>>>>> >> > S: gsshatan
>>>>>>> >> > Phone-to-Skype: 646-845-9428 <tel:646-845-9428>
>>>>>>> >> > gregshatanipc at gmail.com
>>>>>>> >> >
>>>>>>> >> >
>>>>>>> >> > On Wed, Apr 26, 2017 at 10:57 PM, Rebecca Tushnet
>>>>>>> >> > <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>>>>>> >> >>
>>>>>>>> >> >> My point exactly.  So what explains the over 90% abandonment
rate,
>>>>>>>> >> >> other than overdeterrence, especially with those most returned
>>>>>>>> terms?
>>>>>>>> >> >> Rebecca Tushnet
>>>>>>>> >> >> Georgetown Law
>>>>>>>> >> >> 703 593 6759 <tel:703%20593%206759>
>>>>>>>> >> >>
>>>>>>>> >> >>
>>>>>>>> >> >> On Wed, Apr 26, 2017 at 10:53 PM, Greg Shatan
>>>>>>>> <gregshatanipc at gmail.com>
>>>>>>>> >> >> wrote:
>>>>>>>>> >> >> > "Maybe absolutely no one else besides the TMCH entrant/s had a
>>>>>>>>> >> >> > legitimate
>>>>>>>>> >> >> > business using those terms."
>>>>>>>>> >> >> >
>>>>>>>>> >> >> > That is clearly and absolutely not the basis of trademark
rights,
>>>>>>>>> >> >> > trademark
>>>>>>>>> >> >> > registration or entry into the TMCH.  Nor is it the way
>>>>>>>>> Sunrise or
>>>>>>>>> >> >> > Claims
>>>>>>>>> >> >> > work.  Ridiculous.
>>>>>>>>> >> >> >
>>>>>>>>> >> >> > Greg
>>>>>>>>> >> >> >
>>>>>>>>> >> >> > Greg Shatan
>>>>>>>>> >> >> > C: 917-816-6428 <tel:917-816-6428>
>>>>>>>>> >> >> > S: gsshatan
>>>>>>>>> >> >> > Phone-to-Skype: 646-845-9428 <tel:646-845-9428>
>>>>>>>>> >> >> > gregshatanipc at gmail.com
>>>>>>>>> >> >> >
>>>>>>>>> >> >> >
>>>>>>>>> >> >> > On Wed, Apr 26, 2017 at 10:45 PM, Rebecca Tushnet
>>>>>>>>> >> >> > <Rebecca.Tushnet at law.georgetown.edu> wrote:
>>>>>>>>>> >> >> >>
>>>>>>>>>> >> >> >> 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 <tel:703%20593%206759>
>>>>>>>>>> >> >> >>
>>>>>>>>>> >> >> >>
>>>>>>>>>> >> >> >> 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 <tel:703%20593%206759>
>>>>>>>>>>> >> >> >> >
>>>>>>>>>>> >> >> >> >
>>>>>>>>>>> >> >> >> > 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-regis
>>>>>>>>>>>> tra 
>>>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fh
>>>>>>>>>>>> arvardlawreview.org%2F2017%2F01%2Fregistering-disagreement-registra
>>>>>>>>>>>> &data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b344
>>>>>>>>>>>> 38794aed2c178decee1%7C0%7C0%7C636288848838788516&sdata=iu0yMvKbDyZe
>>>>>>>>>>>> bmCpHx42pp%2BuQGNY3aNnUVn7YgzLoA8%3D&reserved=0>
>>>>>>>>>>>> >> >> >> >> 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 <tel:703%20593%206759>
>>>>>>>>>>>> >> >> >> >>
>>>>>>>>>>>> >> >> >> >>
>>>>>>>>>>>> >> >> >> >> 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 <tel:703%20593%206759>
>>>>>>>>>>>>> >> >> >> >>>
>>>>>>>>>>>>> >> >> >> >>>
>>>>>>>>>>>>> >> >> >> >>> 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 shouldn¹t 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
>>>>>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2
>>>>>>>>>>>>>> Feff.org&data=02%7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7
>>>>>>>>>>>>>> b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636288848838788516&sdata=
>>>>>>>>>>>>>> KzOy4znSpz0a9ehfGktwBDMo2ewTzNlJvPB42cYQEiE%3D&reserved=0>
>>>>>>>>>>>>>> >> >> >> >>>> jmalcolm at eff.org
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>> Tel: 415.436.9333 ext 161
>>>>>>>>>>>>>> <tel:415.436.9333%20ext%20161>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>> :: Defending Your Rights in the Digital World ::
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>> Public key:
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> https://www.eff.org/files/2016/11/27/key_jmalcolm.txt
>>>>>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2
>>>>>>>>>>>>>> Fwww.eff.org%2Ffiles%2F2016%2F11%2F27%2Fkey_jmalcolm.txt&data=02%
>>>>>>>>>>>>>> 7C01%7C%7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794ae
>>>>>>>>>>>>>> d2c178decee1%7C0%7C0%7C636288848838788516&sdata=xkQT0KuikbckR%2B7
>>>>>>>>>>>>>> 4w%2Fz94XQg5UvkhiHvIw%2F7a4v5%2BjI%3D&reserved=0>
>>>>>>>>>>>>>> >> >> >> >>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911
EC4A EDDF
>>>>>>>>>>>>>> >> >> >> >>>> 1122
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> 
====================================================================
>>>>>>>>>>>>>> >> >> >> >>>> =
>>>>>>>>>>>>>> >> >> >> >>>> =
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>> Reminder: Any email that requests your login
>>>>>>>>>>>>>> credentials or
>>>>>>>>>>>>>> >> >> >> >>>> that
>>>>>>>>>>>>>> >> >> >> >>>> asks you to click on a link could be a phishing
>>>>>>>>>>>>>> attack.  If you
>>>>>>>>>>>>>> >> >> >> >>>> have
>>>>>>>>>>>>>> >> >> >> >>>> any questions regarding the authenticity of this
email or its
>>>>>>>>>>>>>> >> >> >> >>>> sender, please contact the IT Service Desk at
>>>>>>>>>>>>>> 212.484.6000 <tel:(212)%20484-6000>  or
>>>>>>>>>>>>>> >> >> >> >>>> via
>>>>>>>>>>>>>> >> >> >> >>>> email at ITServices at timewarner.com
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> =================================================================
>>>>>>>>>>>>>> >> >> >> >>>> This message is the property of Time Warner Inc.
and is
>>>>>>>>>>>>>> >> >> >> >>>> intended
>>>>>>>>>>>>>> >> >> >> >>>> only for the use of the
>>>>>>>>>>>>>> >> >> >> >>>> addressee(s) and may be legally privileged and/or
confidential.
>>>>>>>>>>>>>> >> >> >> >>>> If
>>>>>>>>>>>>>> >> >> >> >>>> the reader of this message is not the intended
recipient, or
>>>>>>>>>>>>>> >> >> >> >>>> the
>>>>>>>>>>>>>> >> >> >> >>>> employee or agent responsible to deliver it to the
intended
>>>>>>>>>>>>>> >> >> >> >>>> recipient, he or she is hereby notified that any
>>>>>>>>>>>>>> dissemination,
>>>>>>>>>>>>>> >> >> >> >>>> distribution, printing, forwarding, or any method
of copying of
>>>>>>>>>>>>>> >> >> >> >>>> this
>>>>>>>>>>>>>> >> >> >> >>>> information, and/or the taking of any action in
>>>>>>>>>>>>>> reliance on the
>>>>>>>>>>>>>> >> >> >> >>>> information herein is strictly prohibited except by
the
>>>>>>>>>>>>>> >> >> >> >>>> intended
>>>>>>>>>>>>>> >> >> >> >>>> recipient or those to whom he or she intentionally
distributes
>>>>>>>>>>>>>> >> >> >> >>>> this
>>>>>>>>>>>>>> >> >> >> >>>> message. If you have received this communication in
error,
>>>>>>>>>>>>>> >> >> >> >>>> please
>>>>>>>>>>>>>> >> >> >> >>>> immediately notify the sender, and delete the
>>>>>>>>>>>>>> original message
>>>>>>>>>>>>>> >> >> >> >>>> and
>>>>>>>>>>>>>> >> >> >> >>>> any
>>>>>>>>>>>>>> >> >> >> >>>> copies from your computer or storage system. Thank
you.
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> =================================================================
>>>>>>>>>>>>>> >> >> >> >>>>
>>>>>>>>>>>>>> >> >> >> >>>> _______________________________________________
>>>>>>>>>>>>>> >> >> >> >>>> gnso-rpm-wg mailing list
>>>>>>>>>>>>>> >> >> >> >>>> gnso-rpm-wg at icann.org
>>>>>>>>>>>>>> >> >> >> >>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2
>>>>>>>>>>>>>> Fmm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%
>>>>>>>>>>>>>> 7C90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794aed2c178de
>>>>>>>>>>>>>> cee1%7C0%7C0%7C636288848838788516&sdata=3ked8x9YllpWvJmgM05B1XWFT
>>>>>>>>>>>>>> HvCz%2FsF0MQ2tL9qQME%3D&reserved=0>
>>>>>>>>>>>>> >> >> >> >>> _______________________________________________
>>>>>>>>>>>>> >> >> >> >>> gnso-rpm-wg mailing list
>>>>>>>>>>>>> >> >> >> >>> gnso-rpm-wg at icann.org
>>>>>>>>>>>>> >> >> >> >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2F
>>>>>>>>>>>>> mm.icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C
>>>>>>>>>>>>> 90df5d6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794aed2c178decee
>>>>>>>>>>>>> 1%7C0%7C0%7C636288848838788516&sdata=3ked8x9YllpWvJmgM05B1XWFTHvCz
>>>>>>>>>>>>> %2FsF0MQ2tL9qQME%3D&reserved=0>
>>>>>>>>>>>>> >> >> >> >>>
>>>>>>>>>>>>> >> >> >> >>> ________________________________
>>>>>>>>>>>>> >> >> >> >>> The contents of this message may be privileged and
>>>>>>>>>>>>> confidential.
>>>>>>>>>>>>> >> >> >> >>> If
>>>>>>>>>>>>> >> >> >> >>> this message has been received in error, please
delete it
>>>>>>>>>>>>> >> >> >> >>> without
>>>>>>>>>>>>> >> >> >> >>> reading
>>>>>>>>>>>>> >> >> >> >>> it. Your receipt of this message is not intended to
waive any
>>>>>>>>>>>>> >> >> >> >>> applicable
>>>>>>>>>>>>> >> >> >> >>> privilege. Please do not disseminate this message
without the
>>>>>>>>>>>>> >> >> >> >>> permission of
>>>>>>>>>>>>> >> >> >> >>> the author. Any tax advice contained in this email
was not
>>>>>>>>>>>>> >> >> >> >>> intended
>>>>>>>>>>>>> >> >> >> >>> to be
>>>>>>>>>>>>> >> >> >> >>> used, and cannot be used, by you (or any other
taxpayer) to
>>>>>>>>>>>>> >> >> >> >>> avoid
>>>>>>>>>>>>> >> >> >> >>> penalties
>>>>>>>>>>>>> >> >> >> >>> under applicable tax laws and regulations.
>>>>>>>>>> >> >> >> _______________________________________________
>>>>>>>>>> >> >> >> gnso-rpm-wg mailing list
>>>>>>>>>> >> >> >> gnso-rpm-wg at icann.org
>>>>>>>>>> >> >> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.
>>>>>>>>>> icann.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C90df5d
>>>>>>>>>> 6dcb74419126d508d48d56373b%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0
>>>>>>>>>> %7C636288848838788516&sdata=3ked8x9YllpWvJmgM05B1XWFTHvCz%2FsF0MQ2tL9
>>>>>>>>>> qQME%3D&reserved=0>
>>>>>>>>> >> >> >
>>>>>>>>> >> >> >
>>>>>>> >> >
>>>>>>> >> >
>>>>>> >> _______________________________________________
>>>>>> >> gnso-rpm-wg mailing list
>>>>>> >> gnso-rpm-wg at icann.org
>>>>>> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.ican
>>>>>> n.org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C90df5d6dcb7441
>>>>>> 9126d508d48d56373b%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636288848
>>>>>> 
838788516&sdata=3ked8x9YllpWvJmgM05B1XWFTHvCz%2FsF0MQ2tL9qQME%3D&reserved>>>>>>
=0> 
>>>>> >
>>>>> > --
>>>>> >
>>>>> > 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
>>>> _______________________________________________
>>>> gnso-rpm-wg mailing list
>>>> gnso-rpm-wg at icann.org
>>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>> <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.
>>>> org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C90df5d6dcb74419126
>>>> d508d48d56373b%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636288848838788
>>>> 516&sdata=3ked8x9YllpWvJmgM05B1XWFTHvCz%2FsF0MQ2tL9qQME%3D&reserved=0>
>>>>  
>>>> World IP Day 2017 ­ Join the conversation
>>>> Web: www.wipo.int/ipday <http://www.wipo.int/ipday> 
>>>> Facebook: www.facebook.com/worldipday <http://www.facebook.com/worldipday> 
>>>>  
>>>> 
>>>> World Intellectual Property Organization Disclaimer: This electronic 
>>>> message may contain privileged, confidential and copyright protected 
>>>> information. If you have received this e-mail by mistake, please 
>>>> immediately notify the sender and delete this e-mail and all its 
>>>> attachments. Please ensure all e-mail attachments are scanned for viruses 
>>>> prior to opening or using. 
>>>> 
>>>> _______________________________________________
>>>> gnso-rpm-wg mailing list
>>>> gnso-rpm-wg at icann.org
>>>> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.o
>>>> rg%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C90df5d6dcb74419126d
>>>> 508d48d56373b%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C6362888488387985
>>>> 20&sdata=6gkVeOAHSV8PQ%2Bmx9Vb1jbuW%2Bivndr3k4ovY0D5usSA%3D&reserved=0
>> 
> 
> _______________________________________________ gnso-rpm-wg mailing list 
> gnso-rpm-wg at icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg


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