[gnso-rpm-wg] Agenda and documents for RPM Working Group call on Wednesday 6 September 2017

Nahitchevansky, Georges ghn at kilpatricktownsend.com
Wed Sep 6 16:10:19 UTC 2017

+1 Claudio  I would also add that there also many litigations that are filed concerning domain names which this numbers approach will not pick up.  The reality is that there are cybersquatting situations that have, at times, been addressed without having to file the UDRP.  The point is that the level of cybersquatting is not simply captured by the UDRP.  Pursuing this sort of numbers approach is in my view an incorrect way of proceeding.  It is like saying that if only 0.5% of the world’s population catches an infectious disease it is not a problem and no money should be spent on vaccine search and the like (notwithstanding that the cost of caring for the infected can be staggering).  The approach doesn’t account for the full brunt of cybersquatting, the massive costs involved to brand owners and ultimately consumers etc..  This kind of approach is not helpful or useful in a review of the sunrise and claims RPMs and is certainly significantly less probative evidence than the answers of the 30 or more respondents to the INTA survey.

Georges Nahitchevansky
Kilpatrick Townsend & Stockton LLP
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From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of claudio di gangi
Sent: Wednesday, September 06, 2017 11:56 AM
To: George Kirikos; Mary Wong
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Agenda and documents for RPM Working Group call on Wednesday 6 September 2017


Often UDRP cases are not initiated for several years after the abusive registration of the domain. In many cases, this adds the additional burden on the trademark owner to monitor the domain for evidence of bad faith for an extended period of time. In your view, how should this factor be reflected in the statistics?

Also, at any point in time the level of cybersquatting in a TLD does not directly correspond to the number of UDRP cases for the reason stated above, and because of other issues related to addressing abusive registrations such as: 1) enforcement demand letters, 2) claims brought under national law, 3) suspensions by the registrar or registry (in the case of phishing), or 4) no action is taken because the trademark owner is not aware of and/or does not have the resources to pursue all abusive registrations. How do you think these factors should be calculated into the equation?


On Wed, Sep 6, 2017 at 8:02 AM George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:
For the collection of data regarding the URS/UDRP cases, it doesn't
appear that any data is being collected regarding how many domains
were registered in the same periods that *didn't* generate URS/UDRP
complaints. That was an essential point, which was already raised
previously (and appeared in a previous document), in order to ensure
that it is a relative measurement (not an absolute one).

Also, when the data is being compiled for URS/UDRP complaints, it
appears it's only checking whether the domain name was registered
within a TMCH claims period. It should be broken down into even more
detail, i.e. was the name registered in  (a) landrush period (i.e.
post-sunrise) with TMCH claims notice, (b) GA period with TMCH claims
notices (i.e. post landrush), or (c) GA period without TMCH claims
notices. If it turns out that the rate of cybersquatting in the
landrush period was low, that supports the argument that the sunrise
period can be eliminated without major harmful effects. On the other
hand, if it turns out that the rate of cybersquatting in the landrush
period was too high, that might argue for the retention of sunrises.

When pulling down WHOIS records, be careful to ensure that the domain
hasn't been deleted and re-registered (might require use of historical
WHOIS, e.g. from DomainTools.com).

With regards to "expanded match", it is going to be prohibitively
expensive, in my opinion, relative to the other questions we're tasked
with, since it basically requires building nearly the full system in
question to test it with the historical data, etc. I've already
pointed out the huge number of expanded terms generated by each rule,
in a past email. Greg (or someone else) should generate all the
relevant matches manually for a subset of common terms, e.g. taken
from the Top 500 most commonly requested terms we've been waiting for
from The Analysis Group), and those expanded matches should be
evaluated by the working group, before hundreds of thousands of
dollars, or even millions of dollars, are invested to build out the
actual system being proposed.

There's a point in #8 (Contractors) about "ICANN staff to work with
Deloitte and/or IBM to obtain aggregated, anonymized statistics
demonstrating percentage of disputed domains that were registered in
Sunrise and that generated a Claims Notice." That doesn't make sense
to me --- in order to register in Sunrise, didn't one *need* to be a
TM owner that had also purchased a recordal in the TMCH??

Under point #12 (middle column), it says "Compilation of all URS
cases" -- shouldn't that have also included UDRP cases (for new gTLD
domains), to match point #7, which measured both?

Generally, the data requests appear to be unbalanced, in that they are
more focused on evaluating all possible harms of cybersquatting (e.g.
"all form of consumer harm" in one point) in order to justify
retention of the RPMs, while not balancing that out by looking for
*all* data that could document the possible benefits of elimination of
the RPMs in question (including, but not limited to, points I've
already raised that are not reflected in the current draft data


George Kirikos

On Wed, Sep 6, 2017 at 12:21 AM, Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>> wrote:
> Dear all,
> The proposed agenda for our next Working Group call, coming up today at 1700
> UTC, is as follows:
> Roll call (via Adobe Connect and phone bridge only); updates to Statements
> of Interest
> Review draft GNSO Council data collection request (including suggested
> prioritization levels from the Working Group co-chairs)
> Next steps/next meeting
> For agenda item #2, the following documents are attached:
> A draft request to the GNSO Council, in the form prescribed by the GNSO
> Operating Procedures, outlining the request, the rationale for the request,
> an initial estimated budget and list of possible sources, as well as
> attachments detailing the Charter questions and data collection tasks being
> contemplated.
> A Google Doc showing all the various data collection tasks identified to
> date (as noted in Attachment 2 to the draft request form described above),
> where the Working Group co-chairs have noted a preferred prioritization
> level to each task.
> The staff understanding is that we will be focusing on a review of the
> Google Doc on the call.
> Thanks and cheers
> Mary
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