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

[George Kirikos]

Hi Brian,

On Wed, Aug 9, 2017 at 5:44 PM, Beckham, Brian <brian.beckham at wipo.int> wrote:
> George, in terms of your UDRP loser pays concept, do you have any thoughts
> on how to go about implementing this? Would e.g. registrars or registries
> take a (credit card) bond? As you can imagine, brand owners would likely
> support this, but have long raised implementation and enforcement concerns.

This would apply just to the landrush registrations, i.e. raising the
bar for those registrants utilizing the procedure, helping to crowd
out cybersquatters from going after the usual "130 sunrise"
registrations. There'd be several ways make an efficient
implementation, but the simplest might be:

1. impose the costs directly on the registrar, and leave it up to the
registrar to perform due diligence on their registrants utilizing the
landrush (e.g. getting indemnified for the risk, etc.). A registrar
like Markmonitor or CSC whose famous customers want to register
Apple.TLD or Google.TLD would face minimal risk. A more dodgy
registrar whose non-famous customer wants to register Exxon.TLD or
Verizon.TLD would face more risk, and would either deny the registrant
completely, or have them put up more capital, pay more for insurance,
etc. (or put their other domain names at risk). It would require
registrars using the landrush to have appropriate levels of insurance.
ICANN appears to have eliminated the insurance requirements a couple
of years ago:

https://www.icann.org/news/blog/icann-waives-registrar-insurance-requirement-levels-playing-field-for-registrars-globally

but that could be undone, for this mechanism.

Alternatively,

2. direct development of a 3rd party guarantor/insurance/bonding (not
necessarily the registrar, but some other entity that would be
accountable and have appropriate financial backing (e.g. probably a
few services would spring up to assess the risk, and could be
distributed via registrars).

For efficiency, I'd tweak the UDRP slightly, to help ensure collection
(getting the money up front) and efficiency for both sides (for both
#1 and #2 above), namely:

Step A: Have TM owner file a very brief "notice of dispute" (i.e.
minimal legal costs to prepare, putting up their loser pay costs (as a
deposit) up front. In essence, it would be kind of like a C&D with
some "oomph" behind it, since it's backed by money saying "we will
file a dispute, and we're showing how serious we are as we already
deposited money if we lose!".

Step B: The relevant guarantor (depending on #1 or #2 above) or the
registrant themselves has N days (e.g. N = 20, N = 30) to put up the
same amount, should they wish to defend the UDRP.

Step C: If the money is not put up, the domain automatically is
awarded to the UDRP complainant (i.e. no panel fees, no decision). A
"no contest", "no mas" kind of outcome (for the boxing fans!).

Step D: If the money is put up, UDRP complainant has M days (M = 20,
or 30, or whatever) to submit the complaint to the relevant provider.
UDRP respondent has similar time limits for a response. It goes to a
decision. Loser loses the money they put up in A or B above.

Of course, cases could go to court at any time, before, during, or
after the domain dispute, with a similar loser pays provision.

Cybersquatters would hate this system. Legitimate registrants would
face little risk (and that "risk" is taken on knowingly, the price of
using the landrush). Bona fide TM holders too should like it -- most
TM holders *hate* having to pay defensive registration fees, for
domains they don't want to use. If the domain name ends up with a
legitimate registrant who isn't cybersquatting, that's a win-win for
the TM holder who doesn't have to register that domain in their own
name. "Sunrise gamers" would also hate it (since they'd now have
competition in landrush from legitimate registrants, as per one of my
emails earlier today).

To give a concrete example, there's a company called "Apple Auto
Glass" here in Canada:

http://www.appleautoglass.com

Suppose they wanted to register Apple.glass (although, that's
currently reserved for some reason), and "win" it in a landrush
auction against the famous computer company. Apple the computer
company should be delighted, as that's one less domain name they have
to pay for that they'll never use. And Apple the computer company
would not likely file a domain name dispute. Apple Auto Glass would
face limited exposure/risk, in the eyes of their registrar or
guarantor, etc. for any future UDRP costs, either. If instead a
cybersquatter got it, the loser pays system would (1) help the famous
Apple computer company reduce costs of curative actions, and (2)
punish more directly the cybersquatter, beyond what's available now. A
cybersquatter who is punished enough goes out of business (e.g.
iREIT).

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/