[gnso-rpm-wg] FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection

Wed Aug 9 18:37:57 UTC 2017

+1 Georges.

Best regards,
Scott

Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com

-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Nahitchevansky, Georges
Sent: Wednesday, August 9, 2017 10:23 AM
To: George Kirikos <icann at leap.com>; gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection

George

The reason I did not focus on the loser pay suggestion is that‎ I disagree with the premise that legitimate registrants are being hurt.  Your Apple example, does not take into account legitimate sunrise situations where the registration would correlate to a bona fide business interest, product, service etc.. Removing sunrise registrations in favor of a landrush period and a loser pay scheme is unworkable and burdensome for a number of reasons. First, if the name has been taken, months can pass before the name is recovered. Thus the risk of malicious use of a domain name for some period of time exists (something we know happens fairly frequently). Second, your loser pays scheme is not workable. Does it include attorneys fees and time spent investigating a matter when the registrant hides, when steps are taken to delay a transfer of a domain name, possible bogus appeals, sham legitimate interest claims etc. Third, how do you collect. Do you force registrants to post bonds when they register domain names. And how much of a bond and in what form so as to avoid collection issue. The reality is that these matters can cost a bunch of money.   There are a number of other points to be made in this regard, but I agree with Phil that this is not the time and place to push on this.  The sunrise is a sensible and reasonable way to balance interests and provide protection to brand owners, maintain the integrity of the system, and prevent harm to consumers. The harm you claim exists to other legitimate registrants is really not there or in evidence. So again, I think we need to focus on tweeking the sunrise RPM to address the limited gaming by speculators and not trying to come up with burdensome and unworkable structures to replace the sunrise RPM.

  Original Message
‎
From: George Kirikos
Sent: Wednesday, August 9, 2017 8:42 AM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] FOR REVIEW & DISCUSSION: Draft collated proposal for Sunrise-related data collection

Georges:

You ignore that I did put forth concrete proposals, namely adding burdens (like loser pays for a UDRP) in the landrush that would deter abusive registrations, which directly reduce the costs that you claim to be substantial (they're not, otherwise lawyers would be making a killing from fighting all that abuse -- clearly they're not). The benefits from those additional burdens would flow to all legitimate markholders, not just the small number of "usual suspects" who repeatedly use the sunrise periods to jump the queue. By carefully targeting the abusers (e.g. via loser pays), it targets the bad registrants without affecting the good ones.

>From the Analysis Group's report, we know the top requested strings are all commonly used dictionary terms.  One of the justifications for the introduction of new gTLDs was to give everyone a fair shot at a "good name". To the extent that the sunrise periods deprive everyone at that fair shot, that's a real cost (i.e. either one has to buy the domain from someone who got it in sunrise, or settle for another inferior domain). Everyone should have an equal chance at domains like "Apple.TLD", regardless of whether they're a TM holder, as long as their use is legal and non-infringing (NB: I'm a shareholder in Apple, the famous computer company, but don't believe they have a monopoly on that word). Instead, of having those terms distributed widely amongst many legitimate users, the current system deprives others of those commonly used terms.

If we eliminated the sunrise, many of those 100,000 sunrise-registered domains (over 1000 TLDs), would instead simply be registered by the same markholder in the landrush, if there was no other registrant demand for it. Of the ones where there *is* competing demand, the abusive ones can be easily handled through existing mechanisms like UDRP/URS, courts, or strengthened ones (loser pays UDRP, etc.).

Sincerely,

George Kirikos
416-588-0269
https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,ar5mgyDEUVIoq2vLAlfYxrWu5OTsAf9BfDndtpUmltlf8Wn6QSsuPD0uma9j0zKdiNJyhkQREk76uge0bV3c_vpxLnlHFOz34maBE8jl0VlH8GohgnikqA,,&typo=1

On Wed, Aug 9, 2017 at 8:02 AM, Nahitchevansky, Georges <ghn at kilpatricktownsend.com> wrote:
> George K:
>
> Your analysis makes reference to the costs of the sunrise period to good faith registrants. What is that claimed cost. Can you quantify it. This alleged harm that you claim‎ exists is largely speculative and a red herring when you compare it to the actual harm that befalls brand owners who have to spend a fortune to recover domain names based on their brands that have been registered by others for profit. We have gone round and round on this and what the cost to brand owners can amount to without a sunrise period. For example, one hundred sunrise period registrations in one extension‎ can save brand owners and ultimately consumers millions of dollars of wasted dollars chasing after cybersquatters. Multiply that by at least 1000 extensions and the amount of the potential costs is staggering. So if you want to talk costs then let's focus on the financial burden at issue and how sunrise periods lower that burden.
>
> That you claim that the sunrise registrations are ‎ low in any one
> extension should be proof to you that bona fide brand owners are not
> gaming the sunrise system and are generally registering their brands
> in the key new gTLDs that relate to their business. There are after
> all over 1000 new gTLDs and presumably more on their way in the
> future. That means that there are well over 100,000 sunrise
> registrations. So you can do the math as to the costs to brand owners
> (costs that actually go to you and me as consumers) to go after what
> would likely be a bonanza to squatters who spend very little to
> register domain names in the firts place. Moreover, I think your
> analysis ignores the potential harm to consumers from not having a
> sunrise system. It is well documented that fraudsters and scammers
> register domain names based on brands for phishing purposes and for
> any number of other schemes to take advabtage of consumers. Without a
> sunrise system the potential increase in scams would be staggering if
> you just look at the past evidence. These are real world issues with
> real world costs as opposed to theoretical claims of harm you cannot
> quantify or prove exists
>
> In our last communications I specifically invited you to work with me and others to try and address the very limited amount of gaming by speculators that had been found . You ignored that invitation and now simply come back with the same old flawed analysis to try and gut the sunrise system altogether. I again invite you and your colleagues to work to try and find a solution to the problem of a handful of speculators gaming the sunrise system.  I and likely many others support the sunrise system and see its benefits to the integrity of the domain name system‎. Hopefully, we can agree to work together to find a fix to the limited gaming issue as opposed to spending our time on this useless back and forth on the same issues.
>
>
> From: George Kirikos‎
> Sent: Wednesday, August 9, 2017 7:11 AM
> To: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] FOR REVIEW & DISCUSSION: Draft collated
> proposal for Sunrise-related data collection
>
>
> Hi folks,
>
> On Mon, Aug 7, 2017 at 11:47 AM, Beckham, Brian <brian.beckham at wipo.int> wrote:
>> Finally, the suggestion that Sunrises may not be meeting their
>> intended purpose due to low uptake statistically-speaking (also as to
>> documented
>> abuses) seems to widely miss the mark.  As J Scott and others pointed
>> out on the call, the intended purpose is to provide an opportunity to
>> get ahead of infringing registrations.  Whether that opportunity is
>> taken up by a brand owner is an altogether separate question.
>
> This analysis is deeply flawed. It attempts to justify the continued
> existence of the sunrise by measuring "theoretical benefits", despite
> the low uptake rate, as opposed to "actual realized benefits" (as
> measured by the actual low update, data that is actually observable),
> when comparing against the costs of the sunrise period (to competing
> good faith registrants, etc.).
>
> For example, consider a public library branch that is in a large
> neighbourhood of 100,000 people, but is only used by 100 people per
> year. Using Brian's flawed analysis, the branch should be kept open,
> because "theoretically", 100,000 people have the opportunity to use it
> (even though 99,900 don't actually use it). Instead, it should be
> closed because only 100 people actually use it. The actual benefits
> (the usage by a mere 100 users) are what matter, when compared against
> the costs.
>
> I agree with the analysis of Paul Keating in this thread, who properly
> weighed the actual benefits (low), vs the costs, and came out in
> favour of elimination of the sunrise period.
>
> As I discussed in a previous thread on this topic, sunrise demand
> would shift to the landrush period when the sunrise period is
> eliminated. Appropriate safeguards could be instituted to reduce
> cybersquatting in that landrush (e.g. loser pays UDRP costs for
> landrush registrations, thereby raising the bar for those
> registrations, compared to general availability, or other mechanisms
> suggested). See the (long) thread in April 2017, starting with:
>
> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/001509.html
>
> and with other replies at:
>
> http://mm.icann.org/pipermail/gnso-rpm-wg/2017-April/date.html#1509
>
> ICANN's history is riddled with examples of bad policy suggestions
> that had theoretical benefits, and whose introduction was based on
> speculative demand that never was realized. It's time to assess those
> policies properly and honestly, and admit that they were failures. The
> sunrise period for new gTLDs is a prime example. By Brian's analysis,
> it can **never** be eliminated, even if just 1 user actually used it,
> because its "theoretical" benefits can **always** be said to be high.
>
> The purpose of this PDP is to do a proper and intellectually honest
> review, which means looking at the actual benefits. To do otherwise is
> to say that the outcome of this PDP is rigged and predetermined, and
> it doesn't matter what the actual data (as measured by actual usage),
> actual experience and actual statistical evidence, tells us.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> https://linkprotect.cudasvc.com/url?a=http://www.leap.com/&c=E,1,Li_us
> wBLmJL2Erq6BG-qajbTN_S2fyLVPuNQ3aKllyaNcW4Ck2ATZ9De39tlHHlfQmnnIW-TEHb
> xv0Z60RWwQ8pOUAOAuFKWkLFf0SGXbr5xlg,,&typo=1
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