[gnso-rpm-wg] TMCH Blog
icann at leap.com
Thu Feb 2 18:36:25 UTC 2017
(and trying to combine multiple responses in one email)
On Thu, Feb 2, 2017 at 12:51 PM, <trachtenbergm at gtlaw.com> wrote:
> I think you are trying to apply domain speculation thinking where it is all about monetary value to protection of trademark rights, which is not necessary focused or valued in terms of specific monetary value. They are not the same thing.
> If life isn’t fair is an acceptable justification then why change the current system because it is not fair that some may have gamed it by using trademark registrations obtained solely for the purpose of registering valuable domain names during sunrise? You can’t have it both ways.
1. The "domain speculation thinking" is your term for what is simply
rational economic decision-making. Even for trademark protection,
rational trademark holders prioritize enforcement based on a
comparison between the economic benefit of stopping the abuse relative
to the economic cost of that enforcement.
2. The "life isn't fair" in my statement was referencing the fact that
not everyone has the same wealth. That is entirely different from
those misusing trademark registrations obtained solely for the purpose
of registering valuable domain names -- those TMs would be invalid in
jurisdictions requiring use (and thus shouldn't have been granted in
the first place).
3. Some folks continue to dance around the issue, and ignore the
economics completely. Each and every time you try to add a wrinkle to
the procedure (i.e. "tweaks" that seek to give better proof of use, or
other modifications), all that does is slightly change the "costs" for
some actors, but doesn't change the underlying economics by much. i.e.
it attempts to impose a "price" indirectly, rather than explicitly and
directly setting a price that would actually change behaviour.
4. For those saying "small" trademark holders would be affected ---
fine, change the economics accordingly --- should the quota be 10,000
marks? Should the cost be $1? Once you make the cost explicitly be $1,
that just says "Fine, we're going to accept all the gaming behaviour,
because we're prepared to look the other way!" That's an invitation to
those who are misusing the sunrise periods to continue doing what
While some constituencies in the GNSO might be fine with that balance
(i.e. accept every TM, and allow all kinds of abuse of the sunrise
periods), other constituencies might draw the line for that balance
5. Let me give you an example -- ACPA allows damages of up to $100,000
for cybersquatting. That's an explicit cost on cybersquatters that
they take into account, and has a deterrent effect. What if that limit
instead was $500? Behaviour would obviously change accordingly,
because cybersquatters are rational.
6. A further example -- it costs $1000+ to file a UDRP (on top of
legal costs, so a number like $5000 might be more relevant for those
who use lawyers). If the total costs were $300, there would be a lot
more filings (which would reduce the benefits of cybersquatting, and
thus change the economics of abuse).
In conclusion, the economics of all the actors are paramount, and seem
to be mostly ignored. By focusing on those economics directly, as
policymakers we can precision-target the policies to directly target
those behaviours, and reduce all the "collateral damage" on the
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