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

George Kirikos icann at leap.com
Sun Aug 13 18:23:51 UTC 2017

Hi folks,

Combining multiple responses into a single (long) email, as before:

Table of Contents

1. Partial Response to Cyntia (second part first)
2. Defending vigorous free expression (response to Cyntia and Greg)
3. Response to Georges N.

1. Cyntia wrote:


Ignoring the first half of that email for now, and addressing the second
half, your statements are incorrect for the following reasons:

a) "trademarks do represent a legal bar to use of a name" is obviously
false. They do not bar non-infringing use. You appear to fail to understand
the limits of what trademarks represent. (if you do understand those
limits, you wouldn't have made that overreaching statement) Once you
actually do understand those limits, one can develop a more nuanced
position that properly gives weight to all sides of these issues. In
essence, it's the failure to understand the limits of trademarks that is
causing some of these bad policy choices. The first step towards finding
consensus is for those on your side to acknowledge that trademark owners
have limited rights. Can you acknowledge that, and form a consensus as to
the actual boundaries of those limits in law? Or will you cling to the
notion that there are no limits?

b) "those who obtain TMs do receive benefits not available to those who do
not" There are two aspects and/or interpretations of that:
(i) perhaps you intended to refer to the *legal* benefits. As I noted in
point 1.(a) above, there are limits to those. The benefits are curative in
nature, and not preemptive. Someone could open a refreshment stand, today,
and sell horse urine with the bottle label "Coca Cola". The famous brand
owner might stop that potentially*** infringing trademark usage through a
lawsuit. They can't *preemptively*, in law, prevent someone from exercising
their free expression rights, for example, to compare the taste of those
two liquids (perhaps they might do so on CocaCola.horse, an unregistered
domain; I drink neither of those two liquids, so have no opinion on the
matter). [*** I say potentially infringing, because if it was an artist
selling those bottles as a form of art, with full knowledge to the buyers
of said art,  there could be an interesting constitutional question]

(ii) perhaps you're instead referencing ICANN-granted "benefits", instead.
That then becomes a circular argument, treating ICANN-granted "benefits" as
the justification for "ICANN-granted benefits". That's treating  those
benefits as an *entitlement*.

c) "Must protect their TMs or risk having them cancelled" This is an
overused argument. How many trademarks have ever experienced "Genericide"?


Of that set, which ones were cancelled because of a failure to register a
domain name (that was then subsequently registered by someone else), and of
that subset, which ones were cancelled because of *infringing use*
(cybersquatting), as opposed to non-infringing use? Show us some actual
stats. I believe that number (i.e. any genericide case that even
intersected with domain names) to be very low, and might even be zero.
Without actual examples which intersect the domain name space, then this is
more fiction than reality.

Furthermore, that risk (that genericide would occur if one failed to stop
every infringing use) is exceedingly small if one is a victim of de minimis
cybersquatting. One can use sites like ZFBot or DomainTools or other domain
scanning tools to find large numbers of *actually registered* domains that
infringe on "Google" or other famous brands. There's no ongoing onus on
them that requires that they eliminate every single infringing use. Indeed,
Google has repeatedly beaten back attempts to genericide its brand, even in
cases that *involve* domain names, see:


Furthermore, your arguments, if true (which they're not), extended to their
logical conclusion imply that there should be sunrise rules at the top
level. Please explain why everything that you said doesn't also apply at
the top level, but instead only applies at the 2nd level. Why isn't the
registered trademark owner of "HOTEL" or "HOTELS" impacted by those TLDs,
in your eyes? Why weren't they given priority access, but instead we got a
landrush system for new gTLDs, with no sunrise.

The risks are comparable, yet an entirely *different* solution was arrived

That's not the only example. Every day tens of thousands of domain names
expire, and become newly available for registration. Those expired domains
are highly contested, e.g. at venues like NameJet, Snapnames, and others.
It's a daily landrush. Why is there no "sunrise" period incorporated into
the expiring domain name policies of ICANN, to give trademark owners first
dibs on that stream of domain names, ahead of companies like HugeDomains,
or any other prospective registrant? Why the difference? If trademark
owners are entitled to sunrises in all cases (which they clearly do not,
e.g. at the top level), then isn't this an ICANN policy failure that needs
to be corrected? Since this is the RPM working group for *all* TLDs,
shouldn't that be part of our charter, to create sunrise benefits for all
TLDs (including the top level itself!), but especially for .com? If yes
(and I can't see why you would argue otherwise, given your stated
position), explain why. If not, why the disparate treatment of those

Once you start to buy into the false belief of trademark owners having an
entitlement, where does that end? Why aren't they entitled to *discounts*
on dot-com registrations, compared to other registrants, because they're so
"special", for example? Doesn't the public interest *demand* and *require*
they get a discount, by your reasoning, so they can buy those "defensive"
registrations and protect consumers?

My position isn't for special treatment for non-trademark owners -- it's
for a level playing field, simple equality, just like that which exists at
the top-level, and which registrars also enjoy.

2. Defending vigorous free expression (response to Cyntia and Greg)

Cyntia and Greg (ignoring the peanut gallery of +1 replies, for the moment)


This is a policy forum, and political speech (trying to change policy
outcomes) is the most highly protected form of expression. I shouldn't have
to say that or educate people on this topic, it saddens me that I do, but
it bears repeating since some are too quick to censor or constrain speech
that they disagree with, or that comes from their opponents.

Cyntia did not identify what exactly she considered "inflammatory" that she
wanted taken "down a notch", but that's like asking someone who is trying
to make a point to "make your point with less impact". If one is trying to
create a change, one *does*, by definition, want to use language that packs
a whallop, that makes an impact. That's called effective communication. I
respectfully decline to be less effective in painting the picture of the
high stakes involved, or constrain my choice of metaphors so that they
paint a less impactful image of the concepts I'm trying to describe. Greg
did mention two metaphors, so let me refer to them and their specific
context from my emails:


I attempted to rebut the concept that anything "beneficial" to one party is
"good overall". If this was a dry scholarly article in an academic journal,
I might have written:

"Party A took an action that increased their utility by X, but that
impacted Party B (or the rest of society) through a decrease of Y. X is
less than Y."

(of course, I'd have used the less than sign, <, instead of typing out "is
less than", but I didn't want to lose some of those with limited math

Now, contrast that with what I actually wrote. Which one had more impact,
style, and painted a clear picture in one's head? I think the answer is
obvious. If one wants to be an effective communicator, one rule is to not
be boring. If I replaced my metaphor with the language above, I'd be
boring. Instead, it created a relatable image that folks could use to grasp
the concept. The concept was that someone could do something good for
themselves (get a seat on a bus), but at the expense of others that has a
greater cost (pushing a pregnant woman out of her seat). Easily understood.
'Are you not entertained?'


'Boring' does not break through the clutter of modern communications, and
doesn't compete effectively in the marketplace of ideas or attention.

Maybe you prefer I use a different metaphor. Should I have used one of the

Alternative Metaphor A: "The prancing unicorn took a shortcut through the
farmer's field, on the way to the lake. By doing so, though, some of the
farmer's crops were damaged."

Alternative Metaphor B: "The princess asked Rumpelstiltskin to conjure her
some toast. Since all magic comes with a price, when he did so, the bakery
burned down."

These illustrated the exact same concept. Were they as effective and
impactful, or memorable? I don't think so. You just read them and have
already forgotten them (look up again!), and will have forgotten them
tomorrow, despite just having read them twice! Some metaphors are more
powerful than others.

The other metaphor was used to illustrate the concept of Discrimination.
Discrimination is a powerful, impactful word, that is easily relatable and
understood. An alternative option would be to use the concept of
"favouritism". Favouritism is defined as:


"unfair support shown to one person or group, especially by someone in

Which word is more impactful, discrimination, or favouritism? We all know
the answer, because I made the right choice, the one that advances my
position, the one that paints the most vivid description to illustrate the
high stakes. Some might tolerate "favouritism", but most won't tolerate
"discrimination". Favouritism is the word one might use to try to disguise
or weaken or dilute discriminatory behaviour, like sunrise periods at ICANN.

Let's take a step back. What is a metaphor? Wikipedia is a starting point
and has a nice summary:


"A metaphor is a figure of speech that refers, for rhetorical effect, to
one thing by mentioning another thing. It may provide clarity or identify
hidden similarities between two ideas."

That's a very nice description. *Hidden similarities*. This is not saying
that two things are the *same*. It's saying that these things are two
different things, but they share some aspect in common.

So, yes, sunrise periods where a trademark holder unjustly jumps in line
ahead of others, causing others damages, shares a similarity to a person
knocking a pregnant woman out of her chair. And it also shares aspects or
similarities with other discriminatory behaviour, such as racism, sexism,
and all the other vile forms of discrimination that exist. And unlike cases
where corrective measures are used to protect those oppressed victims of
discrimination, trademark holders are *not* some oppressed group. They
sunrise periods for new gTLDs are being used by some of the richest
companies in the world, who need no special advantages over everyone else.
The metaphor is vivid, strong, and illustrates my point. It provides a
fresh insight, ones that others might not have considered before. That's
what changes minds and positions, and change itself is what some people
find dangerous.

The people that find change dangerous are happy with the status quo. They
are content to "play for a stalemate" (hey, that's a metaphor! try to keep
track of all the metaphors we use in daily language) I'm not playing for a
stalemate --- I'm playing to win, and so are others who seek change. You
can identify the people that are playing for a stalemate by their
behaviour, for example they will try to stifle/censor dissent, call for
premature end to debate (just like Greg attempted to do at
http://mm.icann.org/pipermail/gnso-rpm-wg/2017-August/002319.html by an
appeal to higher authority), among other things.

Noah Chomsky said that "The smart way to keep people passive and obedient
is to strictly limit the spectrum of acceptable opinion, but allow very
lively debate within that spectrum…."

Isn't that what the more censorious folks are attempting to do, namely
disguise an echo chamber by creating the "illusion" of debate, but limit
the spectrum of what is acceptable, to ensure that the status quo is not
upset? Trying to limit which metaphors are used is part of that.

Effective communication means using simple accessible language. You'll note
I often will write in a conversational manner. I could instead write in a
formal, academic and dry tone (look me up in Google Scholar), but that's
not effective in this policy arena (another metaphor!). Another thing is
reinforcing key messages. One needs to be authentic. One needs to also be
memorable. Have you forgotten my metaphors, or are they burned
(metaphorically!) into your soul? Madison Avenue can tell you metaphors
that create an emotional impact help sell -- and we're trying to sell our
ideas in this competitive marketplace. It's a fair tool.

When folks were arguing/debating about SOPA or Net Neutrality other
"technical" matters, the ones who were most successful knew all these

One wants to keep people on their toes, to not know what's coming next. One
also wants to be quotable (and notice who gets quoted, and who doesn't on
this list, and whose threads are starved for attention -- not mine!). And
you know who does this effectively? He's sitting in the Oval Office! See
the article at:


which analyzed Donald Trump's communication style (yes, I set you up there,
by saying non-controversial points you nodded to, and then hitting you with
that; how was that for an emotional response?). That was a pre-election
analysis, too. One of his most effective metaphors was "Drain The Swamp".
Effective, memorable, and he won.

Of course, I'm not Donald Trump (I back up my statements with rigorous
analysis, can "show the work/math" when called upon, etc). I have a long
track record of making an impact within ICANN policymaking, and do my
homework. But, one can learn from studying Trump, even if one disagrees
with his policies/statements/ideas.

As for "inflammatory", what does that really mean? I think some folks want
to "tone down" (translation = make less effective) certain speech, because
it would neuter their opponents. No thanks, I'll respectfully decline.

Trump used the expression "Fire and Fury". That's in every newspaper and on
every TV news channel. Highly effective, simple, and inflammatory
(literally!). Said by the President of the United States, and acceptable
political speech. Pick up any newspaper and the "tone" of what is
acceptable is certainly comparable to the metaphors I use. Watch John
Oliver on HBO, or other late night talk show hosts, and see what is

If you want to see boring, go read the latest couple of months of the
Business Constituency mailing list:


They have had fewer than 100 posts in all of 2017 so far. They've had less
in that time span than the 92 we've had so far this month (13 days) alone:


For those who don't have access to it (either directly, or via moles,
leaks, whistleblowers, forwarded emails, etc.), one can imagine what the IP
constituency or other ICANN private mailing lists might look like. When's
the last time they said anything quotable? Contrast that with this one,
where there is vigorous debate. Some don't like that, because they feel
they might lose in the marketplace of ideas. Take a look at every ICANN
period, with its dry technical reports, that elicit few if any responses.
That's by design. Contrast that with how other organizations that seek
change (EFF, ACLU, etc.) communicate to the world, to encourage debate and
get their message out. If you want stability, be boring, very boring. For
those who want to change that stability, take risks, be exciting. When I
raised the alarm bells in the past regarding tiered pricing, for example, I
wasn't boring.

There's almost an industry these days of "fake outrage" used to attempt to
stifle opposing views. That fake outrage is directed only at opposing
views, but not when used to advance their own positions. They'll even
attack your "style", just as I was criticized for not "top posting"!!


one of the sillier disputes on this list to date. Someone very wise told me
early on to expect lawyerly "distractions" and other tactics. They were so
insightful and right. And they laughed at how they didn't need to
intervene, as I was doing a pretty good job of handling those attacks
without any help. As Lady Mormont would say, one man from Bear Island is
worth ten from the mainland. :-)


Back to what's "inflammatory". Those expressing fake outrage are like those
who suggested they "hated the Red Wedding episode of Game of Thrones, that
after the *fifth* time watching it, they had to turn away!" Or, "Can you
believe what just happened on the Bachelor, I'm never going to watch it
again!" The ratings might suggest otherwise.

Of course, you're still with me, even though you pretend you're not reading
all the way through…let's go on. You're not bored, yet, waiting to see what
I might say next. Hmmmm, I read somewhere that's "effective communication".
:-) (as he typed away in his conversational style)

Here are some examples of metaphors, that we see every day!

e.g. some from http://www.knowgramming.com/war_metaphors.htm

"The sky is falling" (referencing an apocalyptic end of the world)
"The glass ceiling" (used by Ms. Clinton in the election campaign)
"a ceasefire for an argument" (war imagery)
"a firestorm of controversy"
"he was bombarded with questions" (war imagery)
"the president is under fire by the press today" (guns)
"to crash and burn on a date"
"love is a battlefield" (a famous song)
"cigarettes are a ticking time bomb"
"that movie really bombed over the weekend at the box office"
"it's a witch hunt" (Trump on Russia investigation)
"to throw domain name registrants under the bus through ICANN's bad
policies" (maybe I'm alone in using that every day; but, you should too;
humour is effective, too!)

Some violent imagery, but that paints a lucid image in one's mind. Terms
like these are normal on TV or newspapers, political cartoons, or everyday

But, then you might say "Oh, but George, those on *our* side are not using
those kinds of metaphors. Trump is a monster, and anything he does, using
vivid metaphors is deplorable."

How about former President Obama? As a candidate, it's known that he used
the metaphor that "if your opponents bring a knife to a fight, you should
bring a gun."


That's an extremely violent metaphor.  But, it's a common and accepted
expression, used everyday. How often do folks say:

"You come at the king, you best not miss"


from The Wire!

During our most recent call, Greg Shatan himself used a vivid metaphor,
with a comparison to a "racket":


"That clearly hasn't happened. I don't - certainly don't think that it was
intended as a way to extract very large, relatively speaking, prices from
trademark owners. It kind of turns the sunrise protection - sunrise period
into a racket." (page 9)

I'm assuming he wasn't referencing the game of tennis, but was describing a
protection racket and comparing the registry operators to the Mafia:


I've used that exact same metaphor myself, as I'm sure many others here
have done. Including Esther Dyson:


Go to Google and search for "ICANN racket" (without the quotes), and there
are many, many matches.

Nobody bats an eye when those kinds of expressions/metaphors are tossed
around, or can credibly call for them to be censored. But, when a political
opponent uses them effectively, there's fake moral outrage from the
predictable quarters.

Also, as for the peanut gallery of +1 senders, take a note of point #1 at:


(I've made this point before) Folks selectively try to interpret the rules
to their own benefit. My cheering section doesn't need to boost my
self-esteem with +1s. :-)

3. Response to Georges N.


That was a funny response. It might as well be from a template/cut and
paste for some people, i.e. ignore references to the data/evidence, and
just say "I disagree." His only "new" statement (perhaps to justify the
email itself), was that the landrush proposal is "unworkable". It's not
credible to say that, given that there's:

a) no sunrise for trademark owners at the top level; if landrush-only can
"work" at the top-level it can work and the 2nd level
b) as I pointed out to Susan in this email above, a new point, no sunrise
period for expiring domain names either (e.g. expiring dot-com domains).
There's a daily landrush for expired domains, and somehow trademark owners
manage just fine without any preferential access to those domains.

Also, you're the last person I'm trying to convince. You continue to make
some of the most extremist statements of anyone on this list, e.g. just
this past week:


"all of this in the name of some particular claimed harm that has not been
proven to exist in the first place"

Really? Don't think that those statements go unnoticed. Maybe those on your
side will try to get you to back off, because you might be doing their side
a disservice with positions that are not credible. Trump didn't campaign in
California, because that wasn't a swing state. Who are the "swing voters"
in this PDP, and in the public at large? Certainly not you.

I, and like-minded others that support the EFF's proposal to eliminate the
sunrise (and broadly speaking, support the rights of domain name
registrants to equal access to domain names) are trying to convince others
in this PDP and the public at large who are open to evidence-based
policymaking, reasoning and debate.

By the way, for Cyntia, that message (the one directly above) by Georges
used the metaphor of the "healthcare system" in the USA, i.e. repealing it.
Was that potentially divisive metaphor unacceptable language that should
also be banned? I don't think it is (regardless of one's political
leanings), and I think it illustrates my earlier point, that folks are free
to use the strong imagery they want to attempt to their points vivid.

Ask yourself, was this email finished today, before sending? Or did I have
it ready yesterday (Saturday), but chose to hit "send" just now (Sunday),
at 2:22 pm, for maximum impact with no other distractions on a lazy Sunday
afternoon and into Monday? Timing is another tool for effective
communications too.

If anyone had any questions and wanted to pick up the phone, I'm always
ready to talk to try to achieve a win-win consensus in ICANN policymaking.
The best way to destroy your enemy is to turn them into a friend.

That's all for now folks. Enjoy the rest of your weekend (I know I will!).


George Kirikos

On Sat, Aug 12, 2017 at 5:04 PM, Ariel Manoff <amanoff at vmf.com.ar> wrote:

> +1 Greg
> *Héctor Ariel Manoff*
> *Vitale, Manoff & Feilbogen*Viamonte 1145 10º Piso
> C1053ABW Buenos Aires
> República Argentina
> Te: (54-11) 4371-6100
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> E-mail: amanoff at vmf.com.ar
> Web: http://www.vmf.com.ar
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> *De:* gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org]
> *En nombre de *Greg Shatan
> *Enviado el:* viernes, 11 de agosto de 2017 20:24
> *Para:* Nahitchevansky, Georges
> *CC:* gnso-rpm-wg
> *Asunto:* Re: [gnso-rpm-wg] 99%+ reduction in sunrise utilization rate
> per TLD supports EFF call for elimination of sunrise
> Agree with Cyntia as well.
> In a few posts, trademark owners have gone from being compared to shoving
> pregnant women out of bus sets to being compared with racists.
> It feels like Godwin's Law will be satisfied soon.
> Greg
> On Fri, Aug 11, 2017 at 7:17 PM, Nahitchevansky, Georges <
> ghn at kilpatricktownsend.com> wrote:
> +1 Cynthia.
> *From: *Cyntia King
> *Sent: *Friday, August 11, 2017 7:12 PM
> *To: *'George Kirikos'; 'gnso-rpm-wg'
> *Subject: *Re: [gnso-rpm-wg] 99%+ reduction in sunrise utilization rate
> per TLD supports EFF call for elimination of sunrise
> Hi George,
> I think your language is unnecessarily inflammatory & I’d appreciate it if
> you’d take it down a notch.
> You should prolly also stop conflating issues of simple commerce (what
> we’re doing here) w/ social injustice.
> Actually, trademarks do represent a legal bar to use of a name & those who
> obtain TMs do receive benefits not available to those who do not.  That bar
> exists to protect consumers.
> We cannot ignore that TM owners:
>    - Invest substantial sums in their marks (registration, marketing,
>    defending, maintenance, etc)
>    - *Must* protect their TMs or risk having them cancelled
>    - Are forced to spend significant sums to stop abuse of their TM names
>    when such abuse occurs
> It’s just not good policy to force TM owners to corral every horse that
> gets out of the barn, rather than taking simple steps to keep them from
> getting out in the first place.
> *Cyntia King*
> CEO & Founder
> cking at modernip.com
> [image: MIP Email Composite Logo]
> -----Original Message-----
> From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org]
> On Behalf Of George Kirikos
> Sent: Friday, August 11, 2017 5:00 PM
> To: gnso-rpm-wg <gnso-rpm-wg at icann.org>
> Subject: Re: [gnso-rpm-wg] 99%+ reduction in sunrise utilization rate per
> TLD supports EFF call for elimination of sunrise
> Hi Cyntia
> On Fri, Aug 11, 2017 at 5:48 PM, Cyntia King <cking at modernip.com> wrote:
> > TM owners do get a place at the front of the line - because the’ve paid
> for it.
> There's no legal right to be "at the front of the line" because they've
> "paid for it". Others would equally be willing to simply pay, if the
> contention is only decided by money (i.e. auctions), as long as everyone is
> on the level playing field.
> > And those people “at the back of the bus” are not being excluded from
> anything.  Any one of them can go to the front of the line if they also
> spend the time, money & effort to register their own TM.
> That's not how problems of "discrimination" is solved. The "solution"
> isn't to "get a TM, because that's what takes you to the front of the
> line" -- that's how we got the gamed sunrises for "THE", "HOTEL", "HOTELS",
> and so on. The solution is to stop discrimination entirely (eliminating the
> sunrise).
> It's like suggesting to a non-white person, "you can go to the front of
> the bus" (in the segregated 1950s America) "by changing the colour of your
> skin!" The right solution isn't to perpetuate discrimination, but to end it.
> Sincerely,
> George Kirikos
> 416-588-0269 <(416)%20588-0269>
> http://www.leap.com/
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