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

Tue Apr 11 16:53:20 UTC 2017

I think you are right that these were likely premium names.  Many registries, including Donuts and Minds & Machines offered names for sale in advance of a landrush at a premium (and some even after general availability periods started).  If free speech is really the "concern" here then how does premium pricing not chill speech or skew the marketplace of ideas by favoring the rich over the poor.  As an aside, on the flowers example, 1-800 Flowers obtained  a number of their names well after the sunrise periods ended (e.g., flowers.london, flowers.today, flowers.country and flowers.website).  Moreover, a bunch of flowers extensions have either been registered to other parties or are still available (e.g., flowers.xyz, flowers.guru, flowers.nyc, flowers.domains, flowers.pet, flowers.photography, flowers.photo, flowers.place, flowers.poker. flowers.property, flowers.republican, flowers.repair etc.)  It hardly seems like there has been a conspiracy to take out common words. At best you have a trademark owner that registered and acquired some domain names (including flowers.com) that correlate to its legitimate business of ordering and delivering flowers, gift baskets etc.

As others have already noted, we have hashed this issue ad nauseum.  Can we move on.

Georges Nahitchevansky
Kilpatrick Townsend & Stockton LLP
The Grace Building | 1114 Avenue of the Americas | New York, NY  10036-7703
office 212 775 8720 | fax 212 775 8820
ghn at kilpatricktownsend.com | www.kilpatricktownsend.com

-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg
Sent: Tuesday, April 11, 2017 12:13 PM
To: George Kirikos; gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Action Items, Slides and Notes from the Working Group call held earlier today
Importance: High

Many, many new TLD registries offer “premium registrations” for names they held back from both Sunrise and Landrush. While I don’t know for sure, I suspect that Flower.deliver may have been obtained as a premium registration.

J. Scott Evans
408.536.5336 (tel)
345 Park Avenue, Mail Stop W11-544
Director, Associate General Counsel
408.709.6162 (cell)
San Jose, CA, 95110, USA
Adobe. Make It an Experience.
jsevans at adobe.com
www.adobe.com

On 4/11/17, 5:18 AM, "gnso-rpm-wg-bounces at icann.org on behalf of George Kirikos" <gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com> wrote:

    Hi folks,

    I believe I've found a "smoking gun", see below:

    On Tue, Apr 11, 2017 at 12:37 AM, Nahitchevansky, Georges
    <ghn at kilpatricktownsend.com> wrote:
    >
    > To put it bluntly, there hea been no evidence presented that bona fide brand owners are abusing the TMCH system in order to horde common terms or stiffle free speech. At best, you have a handful of speculators that gamed the system to some extent. This might be a fix or a tweek to the existing regime, but should not be a wholesle questioning of the entire system. Let' move on already.

    According to the launch schedule for the .DELIVERY TLD at:

    https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fie.godaddy.com%2Fhelp%2Fabout-delivery-domain-names-12395&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090031425&sdata=A4epGp50mZ4N9sy%2FZTlGVRn8%2B1qzc67TwJzXbmwXLIg%3D&reserved=0

    Sunrise period was from 12/2/14 at 16:00 UTC to 1/31/15 at 16:00 UTC,
    and EAP (Landrush) didn't begin until 2/4/15 at 16:00 UTC

    Consider the domain name FLOWERS.DELIVERY, registered to
    1-800-FLOWERS.COM Inc., via DomainTools:

    https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domaintools.com%2Fflowers.delivery&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090031425&sdata=687KI6VoX66%2FbIgc9RhAcZr64rhbkX%2Bczf8i8Al4Ljk%3D&reserved=0

    Its creation date/time was 2015-02-03T22:14:41Z, which was BEFORE the
    EAP/Landrush date, which is strong evidence it was registered in the
    sunrise period. [I'm aware that the date is after the close of
    sunrise, however, I believe that's because all the sunrise domains
    were created in a batch after the sunrise period was completed; that
    way, if there were multiple applications for the same string, they
    could be auctioned, etc.]

    Note that Yahoo.delivery was created at the same time (within a few seconds):

    https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domaintools.com%2Fyahoo.delivery&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=cw40BgvI0z7L8xs6F2%2BqGwIwMopU4Ga3KE7DDJGuN2g%3D&reserved=0

    Creation Date: 2015-02-03T22:14:58Z

    Once again predating EAP/Landrush (I'm confident that's a sunrise
    registration, as it would be cheaper than paying the Day 1 EAP
    price!).

    And it's the same date/time stamp as that of the US Postal Service's
    registration:

    https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwhois.domaintools.com%2Fusps.delivery&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=ttU9S2lQRa5q6HWYJUbY3KmLH7WCnEWadPvYSFdtK4I%3D&reserved=0

    Creation Date: 2015-02-03T22:14:26Z

    which once again, should have been a sunrise registration too.

    And in case anyone suggests that "maybe someone else gamed the system,
    and 1-800-Flowers.com bought it from them", the earliest WHOIS history
    record from DomainTools is dated 2015-02-04 (i.e. the next day) and
    is:

    https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fresearch.domaintools.com%2Fresearch%2Fwhois-history%2Fsearch%2F%3Fq%3Dflowers.delivery%26date%3D2015-02-04%26origin%3Dpermalink&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=p5eRpQzan1%2FsuL7U5Wr0osCknZo%2Bc6%2FPv3cdopwhBx8%3D&reserved=0

    Domain Name: flowers.delivery
    Domain ID: 9f91e929ec1c4bc09eaeccd278f2652f-D
    WHOIS Server: https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.whois.corporatedomains.com&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=0VNRet%2BTHS2M2reCJ%2B8iDJBSfKpjIiWCa137QgRvYOA%3D&reserved=0
    Referral URL: https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.cscglobal.com&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=Je11A5gpEBCWni4GKyTC1%2Br90lfXlGCMZUpqWD5USgk%3D&reserved=0
    Updated Date: 2015-02-03T22:14:41Z
    Creation Date: 2015-02-03T22:14:41Z
    Registry Expiry Date: 2016-02-03T22:14:41Z
    Sponsoring Registrar: Corporation Service Company
    Sponsoring Registrar IANA ID: 299
    Domain Status: ok https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.icann.org%2Fepp%23ok&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=CFqhnKgVMt%2Bk132mMosW7p8JjfVwFrHU8E%2F6p9IM8So%3D&reserved=0
    Registrant ID: 1800flower
    Registrant Name: Domain Administrator
    Registrant Organization: 1-800-FLOWERS.COM, INC.
    Registrant Street: One Old Country Road, Suite 500
    Registrant City: Carle Place
    Registrant State/Province: NY
    Registrant Postal Code: 11514
    Registrant Country: US
    Registrant Phone: +1.5162376000
    Registrant Phone Ext:
    Registrant Fax: +1.5162376101
    Registrant Fax Ext:
    Registrant Email: domainadmin at 1800flowers.com

    This is evidence that cannot be ignored, and is likely just the tip of
    the iceberg.

    There you have it, a "smoking gun". I can see why some people wanted
    to "move on", to perhaps prevent us from digging deep to find evidence
    like this, not by a "handful of speculators", but by a large brand
    owner like 1-800-FLOWERS.com seeking to gain priority access to a
    common dictionary word that is descriptive to its entire industry.

    Sincerely,

    George Kirikos
    416-588-0269
    https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7C6927b922dec64078668b08d480d4dc30%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636275099090041434&sdata=3jjVIP%2BLcjFkCKGHJ7HWE8MzE%2Fvq5ZHyq5Uhb2vwPnE%3D&reserved=0
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