[gnso-rpm-wg] A Proposal for Smarter Non-Exact Matches

Paul Keating paul at law.es
Wed May 31 07:31:20 UTC 2017

Not intending to cause heartache but ....

Please keep in mind that the TMCH is a tool that is used for the following:

1.   Exclusive registration of domain names during sunrise. 

2.   The claims notice process. 

These two serve vastly different purposes, provide vastly different forms of protection, and have drastically different consequences. 

I have less concern about #2 provided the notice is clear and simply understood. 

I have a big problem with any expansion as to #1 and actually want to see this dialed back so as to provide fewer rights to exclusivity.   

Let's not forget there remain the UDRP and litigation in the event of infringement. 

I am also very opposed to the use of UDRP and judicial decisions to bolster trademark rights for the above purposes. 

   The UDRP is a streamlined process with under educated (sometimes uneducated) panelists - some of whom are not attorneys and at least one of which was a traffic court judge.  There is little or no evidence and the panelists conduct little or no research.  At least one ADR provider is known to unfairly favor certain panelists (statistically proven) and the others are completely opaque as to the manner of selection. The tests for trademark equivalence is extremely low and the entire element is considered a "standing" requirement that has been overly simplified.   And, the result is often dependent upon the quality of the party representatives. 
   Litigation is a private dispute among private parties. Any evidence or legal argument is dependent upon the quality of the litigant counsel and the jurisdiction. 

Neither is N acceptable standard to use in granting a global monopoly over domain. Name registration.   The global nature mandates (IMHO) that we use the most severe of standards. 

Paul Keating, Esq.

> On May 31, 2017, at 8:55 AM, Mike Rodenbaugh <mike at rodenbaugh.com> wrote:
> Of course George is correct on this, wrt ASCII names.  But we are seeing punycode (IDN) look-alike names a bit more often rear their ugly heads in the wild.  I am unsure how or whether that could realistically be addressed through TMCH/sunrise/claims protection, but probably we all would agree we should protect against them if possible?  Anyone have ideas whether it would be possible?
> Thanks,
> Mike
> Mike Rodenbaugh
> tel/fax:  +1.415.738.8087
> http://rodenbaugh.com 
>> On Tue, May 30, 2017 at 8:56 PM, George Kirikos <icann at leap.com> wrote:
>> Hello,
>> On Tue, May 30, 2017 at 11:33 PM, Jonathan Agmon
>> <jonathan.agmon at ip-law.legal> wrote:
>> > I would therefore suggest that you consider adding a few additional rules to your addendum proposal:
>> >
>> > 1.       Upper/Lower case substitution (to avoid abuse of the fact that the DNS is case sensitive);
>> Domain names are *not* case sensitive. The owner of Example.com
>> doesn't need to worry about anyone cybersquatting on eXample.com,
>> eXAMPle.com, EXAmple.com, eXaMpLe.CoM, etc.
>> Sincerely,
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
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>> gnso-rpm-wg at icann.org
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