[gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today

Fri Apr 7 17:19:00 UTC 2017

I agree there are alternatives. I would recommend that we consider that all future TLDs need to be sponsored and that the registries need to verify and take responsibility for the use of the domains within there registries. They could have a notice and takedown system.

J. Scott Evans
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On 4/7/17, 12:31 AM, "gnso-rpm-wg-bounces at icann.org on behalf of Paul Keating" <gnso-rpm-wg-bounces at icann.org on behalf of paul at law.es> wrote:

    Hello all. I have been following these threads with growing concerns.  It seems people are letting their anger show and I ask that the discussion be rebooted.  Email is a horrible communication system - even when polite emails are often misconstrued. 

    Seems to me that the issues all seem to center around the following:

    1. Sunrise as inconsistent with freedom of expression 

    2. Sunrise is unfair because it provides a priority right to TMCH registrants over all other potential registrants. 

    Regarding #1 there is no doubt that the sunrise system infringes on speech freedoms.  The infringement is not avoided simply because The speaker has an alternative channel; part of the freedom incorporates the communicative aspects of being able to select the method of speech itself. 

    There are indeed many enroachments upon freedom of speech. Some are permissible. Some are not. Whether a particular impact is permissible or appropriate requires a balance of interest.  That balance includes 

      the societal interests in restricting speech vs not. 

      The speaker's interests

      Whether alternatives to the restrictions exist. 

    Seems to me here that alternatives do exist which alone may not preclude all possible trademark abuse but acting together may.  These include the use of the pre-registration TMCH notice (which I am told is extremely effective), the UDRP, The URS, and of course litigation. There are also of course economic forces wherein the registration price is placed outside of the affordable range for an abuser.  This issue is not limited to trademark rights. It arises anytime there is a priority granted. 

    I ask that we consider all of the above. 

    2. The priority right. In addition to the speech related issue above there is the issue of priority based upon trademark rights. 

    To determine if this is being abused or if the benefits granted are not otherwise justified we need data. L

    > On Apr 6, 2017, at 12:47 PM, Jon Nevett <jon at donuts.email> wrote:
    > 
    > Contrary to George's fears, for example, it seems clear from the study that Sunrise is not being used by trademark owners to monopolize generic terms.  Nor is there any empirical evidence that it has had any negative effect on non-trademark owner registrants or applicants.

    I ask that Jon kindly provide the data. I have not seen any data that would permit such a conclusion. This would require data as to:

      - the actual mark's in the TMCH, 
      - the number of sunrise registrations undertaken based on a TMCH registration, 
      -  the number of post-sunrise, pre-registration notices sent to registrants, and 
      -  the number of registrations subsequently undertaken notwithstanding the notice (from which we can determine the number of domain registrations abandoned post notice. 

    If we do this honestly then "camps" don't matter and insults and offensive language can be avoided. We are tasked with making recommendations that will benefit the entire space and we should strive to avoid words and decisions that separate us from that goal. 

    Paul Keating. 

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