<div>To expressly state what I've implied, UDRP decisions are another source of information, and a better one in my view. We have years of UDRP decisions before the New gTLD Program, and numerous decisions involving New gTLDs. UDRP filings and decisions are meatier as well, so we'll have access to contemporaneous analysis. ACPA cases should be useful as well.</div><div><br></div><div>Greg</div><div><br><div class="gmail_quote"><div>On Tue, Apr 25, 2017 at 5:21 PM Rebecca Tushnet <<a href="mailto:Rebecca.Tushnet@law.georgetown.edu">Rebecca.Tushnet@law.georgetown.edu</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Your kindness is greatly appreciated. Now that we're actually talking<br>
about the topic: Do we have any evidence on the extent of the problem<br>
the proposal addresses? I've suggested URS decisions as a potential<br>
source of information; are there others?<br>
<br>
Greg's suggestions for limits on matches are quite interesting, and<br>
would at least partially address the ELLE/Cottonelle/Seller problem--a<br>
much bigger problem for the common words like those in the top ten<br>
from the audit than for EXXON. Especially given how Deloitte has<br>
interpreted some of the current requirements, I'd want to be very<br>
certain where the relevant keyword lists would come from. The<br>
registration information seems the least vulnerable to gaming,<br>
especially if the TMCH remains secret, though we might then consider<br>
the effects on the need for proof of use. Anything that requires<br>
someone to develop a separate list (and verify it? or would Deloitte<br>
be allowed to take the submitter's word?) might increase the expense<br>
of the TMCH, which seems like a concern.<br>
<br>
I have more concerns about dealing with typos, because that can wander<br>
quickly into very broad territory. The suggestion that the registrant<br>
provide typos seems the most limited, but would the registrant be<br>
limited to any number of typos submitted, or any amount of<br>
transformation? (E.g., could a registrant of Pfeffernusse submit<br>
Fefernus? Would whether this is a plausible typo, versus the owner of<br>
"cloud" submitting "climb," be evaluated by anyone?). Greg mentions a<br>
"formula or process" for generating typo matches--does any such<br>
automated program already exist? How much would it cost to create<br>
one? Data about the TMCH +50 may also be relevant here in terms of the<br>
magnitude of the problem to be addressed, or the model of the TMCH +50<br>
where the registrant identifies a previously abused string.<br>
Rebecca Tushnet<br>
Georgetown Law<br>
703 593 6759<br>
<br>
<br>
On Tue, Apr 25, 2017 at 4:45 PM, Greg Shatan <<a href="mailto:gregshatanipc@gmail.com" target="_blank">gregshatanipc@gmail.com</a>> wrote:<br>
> Clearly, we have people who are interested in defending the proposal. Paul<br>
> McGrady has done so on this thread. I'm certain the proposer is<br>
> "interested," as well. We've also had some responses that are interested in<br>
> variations on the proposal, but still going beyond exact match. We've had<br>
> almost nobody "interested" in disagreeing with the proposal. The upcoming<br>
> meetings of the WG will be used to open up the discussion of the various<br>
> proposals, including this one. I believe that was the game plan all along.<br>
> So at best, it's both incorrect and premature to attempt to call consensus<br>
> in one direction or the other. At worst, it seems like an attempt to drown<br>
> the proposal in the bathtub while nobody's watching. The general approach<br>
> in ICANN WGs is to give any proposal a full and fair hearing and opportunity<br>
> for discussion, across at least a couple of meetings. Summary execution is<br>
> not consistent with that approach. I'll give you the benefit of the doubt<br>
> and believe that you were "shaking the tree" rather than intended to cut off<br>
> discussion before it even started. It seem that has been the effect. If<br>
> that was your intent, thank you for focusing us.<br>
><br>
> I would support an expansion beyond exact match for matching rules. I would<br>
> suggest modifying the proposal to have more defined methods of matching.<br>
> For example, typos of the mark and mark+keywords. Keywords could be derived<br>
> from the trademark registration description or from either<br>
> registrant-defined or pre-defined lists of keywords, based on the goods and<br>
> services. Typos could simply be determined in a fashion, either by the<br>
> registrant or by some formula or process. Domain hacks should also be<br>
> considered (e.g., the trademark SALAD NINJA would be a match with<br>
> salad.ninja, as well as saladninja.ninja. This would not require that<br>
> variations be registered in the TMCH.<br>
><br>
> This is consistent with the type of harms seen in the marketplace. While<br>
> early UDRPs largely dealt with "exact match", the trend for quite some time<br>
> has been toward typosquats and mark+keyword violations. The first wave of<br>
> UDRPs has seen more exact matches, but we can expect history to repeat<br>
> itself. The TMCH should keep pace.<br>
><br>
> Greg<br>
><br>
><br>
> On Tue, Apr 25, 2017 at 2:32 PM Rebecca Tushnet<br>
> <<a href="mailto:Rebecca.Tushnet@law.georgetown.edu" target="_blank">Rebecca.Tushnet@law.georgetown.edu</a>> wrote:<br>
>><br>
>> That's because it came from words that weren't mine.<br>
>><br>
>> If no one at all is interested in defending the "expanding the match"<br>
>> proposal that this thread is supposed to cover, does that mean that we<br>
>> have a consensus that it's not worth pursuing? I'm not sure what the<br>
>> procedure for determining that would be.<br>
>> Rebecca Tushnet<br>
>> Georgetown Law<br>
>> 703 593 6759<br>
>><br>
>><br>
>> On Tue, Apr 25, 2017 at 2:23 PM, Paul Keating <<a href="mailto:paul@law.es" target="_blank">paul@law.es</a>> wrote:<br>
>> > I'm sorry but these 2 statements seem to be in conflict with each<br>
>> > other.....<br>
>> ><br>
>> > I don't in fact think that the TMCH contains names of those individuals<br>
>> > who've been wrongly deterred from registering domain names they had a right<br>
>> > to register.<br>
>> ><br>
>> > As has been discussed for a while, I think it contains other relevant<br>
>> > evidence, like more words like "cloud" and "hotel" that prima facie don't<br>
>> > seem likely to justify preemptive rights across new gTLDs.<br>
>> ><br>
>> > I am more concerned about the latter but must say I really don't<br>
>> > understand what is meant by the former.<br>
>> ><br>
>> ><br>
>> > Sent from my iPad<br>
>> ><br>
>> >> On 25 Apr 2017, at 16:22, Scott Austin <<a href="mailto:SAustin@vlplawgroup.com" target="_blank">SAustin@vlplawgroup.com</a>> wrote:<br>
>> >><br>
>> >> I don't in fact think that the<br>
>> >> TMCH contains names of those individuals who've been wrongly<br>
>> >> deterred<br>
>> >> from registering domain names they had a right to register. As has<br>
>> >> been discussed for a while, I think it contains other relevant<br>
>> >> evidence, like more words like "cloud" and "hotel" that prima facie<br>
>> >> don't seem likely to justify preemptive rights across new gTLDs.<br>
>> _______________________________________________<br>
>> gnso-rpm-wg mailing list<br>
>> <a href="mailto:gnso-rpm-wg@icann.org" target="_blank">gnso-rpm-wg@icann.org</a><br>
>> <a href="https://mm.icann.org/mailman/listinfo/gnso-rpm-wg" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/listinfo/gnso-rpm-wg</a><br>
><br>
> --<br>
><br>
> Greg Shatan<br>
> C: 917-816-6428<br>
> S: gsshatan<br>
> Phone-to-Skype: 646-845-9428<br>
> <a href="mailto:gregshatanipc@gmail.com" target="_blank">gregshatanipc@gmail.com</a><br>
</blockquote></div></div><div dir="ltr">-- <br></div><div data-smartmail="gmail_signature"><div dir="ltr"><div><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><p style="margin:0in 0in 0.0001pt;font-size:11pt;font-family:Calibri,sans-serif"></p><div><p style="text-indent:0in"><span style="font-size:12.8px"><a></a></span><b style="font-size:12.8px"><span style="font-size:10.0pt;font-family:"Arial","sans-serif";color:#002e62">Greg
Shatan<br>
</span></b><span style="font-size:10pt;font-family:Arial,sans-serif;color:black">C: 917-816-6428<br>
S: gsshatan<br>Phone-to-Skype: </span><font color="#000000" face="Arial, sans-serif"><span style="font-size:13.3333px">646-845-9428<br></span></font><a href="mailto:gregshatanipc@gmail.com" style="font-family:Arial,sans-serif;font-size:10pt;text-indent:0in" target="_blank"><span style="color:#1155cc">gregshatanipc@gmail.com</span></a></p><p style="font-size:12.8px;text-indent:0in"><span style="font-size:10.0pt;font-family:"Arial","sans-serif""></span></p></div></div></div></div></div></div></div></div></div></div></div>