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

[George Kirikos]

Oops, I kind of skipped a step there --- with the "tweaked" UDRP I
suggested, one wouldn't necessarily have to have the same level of
guarantee, given the default scenario (where the domain transfers if
the money isn't put up by the registrant). However, I still think
there should be *some* monetary damages (e.g. a few hundred bucks)
even in that default scenario, to cover the "C&D" aspect of the
"notice of dispute"). Those would be lower than the damages/costs in a
full-blown contested UDRP.

Sincerely,

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





On Wed, Aug 9, 2017 at 6:41 PM, George Kirikos <icann at leap.com> wrote:
> 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/