[gnso-rpm-wg] 99%+ reduction in sunrise utilization rate per TLD supports EFF call for elimination of sunrise

[George Kirikos]

To reduce the number of emails, I'll respond to several recent emails
in a single (long) email, with a table of contents (!) to help preview
what's coming.

Table of Contents
-----------------
1. Response to Georges N.
2. Response to Volker
3. Response to Paul T.
4. Response to John M.
5. Sunrise periods are discrimination
6. Response to Marc M.
7. Response to Cyntia
8. Why aren't there sunrises at the top level?

1. Georges N. wrote:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002332.html

and attempted to argue that if sunrise were eliminated, there'd be "a
large spike of abuse". This completely ignores the fact that the
trademark holder has the option to simply pursue the domain name in
the landrush instead. In other words, giving up the sunrise doesn't
mean that the former users of sunrise can't obtain the domain name ---
they can, under a level playing field of landrush. I outlined the
exact scenarios that would exist at

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002286.html

for a system without sunrise. Those are not unreasonable to trademark
holders (see discussion later), especially if complemented with even
more stringent requirements for landrush users (e.g. loser pays, or
the other stuff discussed in April, etc.) Gucci.shoes could be
registered in landrush instead. All the claimed "costs" of pursuing
infringements, etc. don't materialize, because Gucci could certainly
be victorious if there was any contention during the landrush period
with a competing registrant for Gucci.shoes.

Georges N. claims "they are not abusing the sunrise system". Many
would beg to differ, when trademark holders are jumping the queue to
get first dibs on dictionary words, etc. that have many competing
uses. They're treating sunrises as an entitlement, but it's not a
right that exists in law. ICANN repeatedly says that they only reflect
existing legal rights, but instead they create *new* rights that do
not exist in law.

Here's an example that might be interesting. How was Flowers.delivery
created on February 3, 2015?

https://whois.domaintools.com/flowers.delivery

by 1-800-Flowers.com? This was a domain name discussed on one of the
domain industry blogs:

https://www.thedomains.com/2015/09/05/google-registers-alphabet-sex-in-sunrise-how-did-they-do-that-more-generics-reg-as-tm/

The same creation date as Yahoo.delivery:

https://whois.domaintools.com/yahoo.delivery

(presumably a sunrise?) and according to Instra, Donuts didn't launch
Landrush until February 4, 2015:

https://www.instra.com/en/domain-names/newgtld/delivery-domain-registration/delivery

Answer me that, please. Is that what the sunrise period (assuming it
was registered in sunrise, as it appears to be) was designed for, so
that 1-800-Flowers.com could apparently "beat" other competition for
the Flowers.delivery domain?

Oh, and of course, the TMCH is kept secret, and there's no indicator
(like there was in .info/biz) in the WHOIS for sunrises that (a) a
domain was registered in sunrise, and (b) which trademark was used to
justify the sunrise registration. Beautiful ICANN transparency there
(not!)

2. Volker's email at:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002333.html

simply proposes new "benefits" to registry operators/registrars, i.e.
GA can be sooner, a timing benefit. It doesn't address the
costs/benefits equation for trademark holders and other prospective
registrants who seek to register the same strings. Furthermore, it's
potentially open to front-running and abuse, given attempted
registrations could then be passed on to TMCH users as "someone is
planning to register X". This could be used to abuse TMCH users
(notices can not reflect a real registration attempt), and/or could be
used to create a new "right of refusal" for trademark holders, a right
that doesn't exist in law (ICANN isn't supposed to be creating new
legal rights).

3. Paul T.'s email at:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002334.html

It depends on what Paul T. is proposing, whether it's only reflecting
a subset of trademark holders most at risk for abuse that could use a
sunrise (which is similar to what I talked about in April when we were
horsetrading, albeit I'd auction off the limited number of slots, and
also make sure that it wasn't stuffed with terms that are widely used
by others; so "Apple" = NO, "Paypal" = YES) In some ways, this would
echo Melbourne IT's call for "High At-Risk Marks" (HARM) to be the
only ones eligible for sunrise, see that proposal at:

http://domainincite.com/10983-melbourne-it-scales-back-harm-proposal

I'll admit I haven't read it in detail, but the summary at:

https://icannwiki.org/Trademark_Clearinghouse

said "Also blocked would be dictionary words from any of the UN’s six
official languages." which is an important requirement that I'd need
to see accepted.

4. John W. said:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002335.html

that Paul T.'s proposal would be "completely unfair to small
businesses, non-profits and individual brand-owners."

Where is John's outrage at a sunrise period that is systematically
*unfair* to legitimate prospective registrants who are *not* trademark
holders? John (and others) appear to be quite vocal about
"unfairness", as long as its to card-carrying members of the trademark
club. Unfairness to others? Not a problem!

5. Sunrises are discrimination. Let's speak plainly here. The use of
sunrise periods (a right that doesn't exist in law) is discrimination.
They single out a group for disparate/special treatment. ICANN's
contracts with registry operators and registrars overwhelmingly
contain terms that forbid disparate treatment of registries and
registrars. Yet, when it comes to disparate treatment of registrants,
that discrimination is not only tolerated, but *prescribed* into
policy! Registrants deserve to be treated the same as any other
registrants, yet, because of lobbying by insiders (the IPC), and
because there's no effective non-trademark registrants constituency
within ICANN, ordinary registrants (non-trademark owners) are
routinely abused and discriminated against.

Now, these special privileges aren't there to support some
historically "oppressed" groups, such as women, aboriginal groups,
LGBT groups, various ethnic minorities, etc. Instead, they're put in
place to give special rights (beyond those in law) to some of the
largest and richest companies on the planet, those who already have a
body of law in place to provide curative rights. They don't *need* the
playing field tilted in their favour, yet they're happy to "jump the
queue" when given the opportunity to do so, further advantaging them
and imposing costs upon others.

Jeremy's proposal isn't saying "let's now give special privileges to
actually oppressed groups", but is saying "let's eliminate sunrise so
that there is *equal* access for all." The same equal access and
treatment that registrars and registries have obtained.

[NB: I could actually see someone proposing special sunrise privileges
for some actually oppressed groups --- I'm sure the IP constituency
would be the first to howl, if they were then 2nd in line, instead of
1st in line]

We know that discrimination has costs. e.g. even attempts to help
historically oppressed groups impose costs on others, witness the
lawsuit by Asian Americans against Harvard University

http://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affirmative-action-and-asian-americans

whereby (they argue) they've suffered due to policies that lowered the
bar for other groups (and thus raised the standard for Asians).

Of course, this discrimination at ICANN isn't about correcting
injustices against legally recognized oppressed groups -- it's just
about money! (commercial interests!)

So, how is it that registries and registrars demand equal treatment in
their own contracts, yet when it comes to treatment of registrants,
disparate treatment through ICANN policy is acceptable, tolerated, and
*instituted* through policy?!!

6. Marc M.'s email at:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002336.html

once again essentially repeats the mantra "a trademark is a trademark
is a trademark", that it's all or nothing. If that's the case, it
should be "nothing", rather than "all". Once again, Marc is unable or
unwilling to single out certain classes of trademark holders for
separate treatment, in order to get to a compromise.

But, going back to the point above, when it comes to equal treatment
of prospective registrants, it's somehow fine to discriminate, as long
as that discrimination puts trademark holders at the front of the
line.

7. Cyntia's email at:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002337.html

tries to analyze the stats, but misses my point that even for those
with below average registrations, the sunrises would have been even
lower than the expected amount, given their size.

And the whole point of sunrises was "trademark holders *need* this, to
fight the scourge of cybersquatting". If you're not using something
(statistically), i.e. using it far less than expected, that
demonstrates you don't actually need it. The assumptions that premised
the institution of the policy proved false. Thus, it's time to reverse
the policy, because of the false premise (since the balance of the
benefits and costs equation is now also reversed through observation,
compared to expectations that had led to the policy being adopted).

No one is arguing that the sunrises aren't providing a *benefit* to
those who use it. i.e. the person who jumped to the front of the line
obviously received a benefit! What we're saying is that the overall
benefits (privatized to those using the sunrise periods) are
outweighed by the costs imposed upon everybody else. [continuing with
the 'jumping the queue' metaphor, the folks who didn't get a seat at
all, or had to settle for a worse seat]

8. Why aren't there sunrises at the top-level?!!??

Now, here's where things get fun. ICANN explicitly rejected sunrise
privileges to trademark holders at the top level! In many ways, ICANN
(through IANA) is the "registry operator" of the root, setting its
policies, yet no special privileges were granted to trademark holders
to "jump to the front of the line" if there was contention at the top
level. Why?

Certainly all the same arguments that the IPC puts forth when
discussing RPMs like sunrise also apply at the top level itself. All
the same arguments that registry operators put forth to reject
sunrises at the top level also apply to the 2nd level. Two different
solutions were arrived at for top vs. 2nd level, though! (reflecting
the power struggle between the various insiders at ICANN, and
inconsistent analysis to similar problems; essentially, registrants
are routinely thrown under the bus)

There are those here who've lately chimed in with their suggestions
that the sunrise at the 2nd level can be "tweaked", to fix the gaming
issue. Pretend that that was true --- that would necessarily mean that
such a *fix* could also be applied to sunrises at the TOP LEVEL!

i.e. it's 100% hypocritical to suggest that the TLDs, and 2nd level
domains should be treated differently with respect to sunrise periods
for trademark holders. If there was contention at the top-level, why
is the answer to the question "Should the trademark holder win?" be
different than the same question applied at the 2nd level?

In essence, the top-level currently has the identical "landrush" at
their level that would exist if our working group eliminates sunrise
period at the second-level. Trademark holders (brand owners) have no
special rights to a TLD, yet are able to outbid others for it if they
so desire. And they of course have recourse for abuses.

Of course, the top-level has their own gaming issue, with "community"
applications! Those "community applications" are akin to the gaming
going on here at the 2nd level in sunrises. These demonstrate the
"costs" of trying to discriminate in favour of certain prospective
registrants, at either the top or 2nd level, and argue for equal
treatment and a level playing field.

So, here's a direct question to trademark holders and to registry
operator reps (and anyone else is free to chime in). If Jeremy's
proposal (to eliminate the sunrise) is rejected, that means we're as a
group, saying that sunrises have been successful. Why not "share that
success" (which would involve the elimination of gaming) at the top
level too?

Perhaps Jeremy would even consider it a "friendly" amendment to his
proposal that if his proposal is rejected, that any "solution" that we
arrive at for sunrises be applied to all future rounds of new TLDs at
the top level? Given registry operators a "taste" of that "solution"
that arrives from this hallowed working group… I hope that serves to
bring in to clear focus the issues that are at stake regarding
treatment trademark owners differently than other legitimate
registrants/applicants…

Have a nice weekend!

Sincerely,

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