[gnso-rpm-wg] FW: Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)

Mon Jul 17 19:56:02 UTC 2017

Dear WG Members:

Let’s keep this civil. I think each party can make their observations without impugning the character of the other person. And, yes, I know I have been guilty of the same behavior in the past, but I am endeavoring to be a better person here so that we can have honest, robust discussions of the issues without all the hyperbole.

I will try to do better and ask that you all will too.

Thanks in advance.

J. Scott

[tps://inside.corp.adobe.com/content/dam/brandcenter/images/image002.gif]

J. Scott Evans

408.536.5336 (tel)

345 Park Avenue, Mail Stop W11-544

Director, Trademarks

408.709.6162 (cell)

San Jose, CA, 95110, USA

Adobe. Make It an Experience.

jsevans at adobe.com

www.adobe.com

From: <gnso-rpm-wg-bounces at icann.org> on behalf of Greg Shatan <gregshatanipc at gmail.com>
Date: Monday, July 17, 2017 at 12:42 PM
To: George Kirikos <icann at leap.com>
Cc: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] FW: Inferences (was Re: Mp3, Attendance, AC recording & AC Chat Review of all Rights Protection Mechanisms (RPMs) PDP Working Group)

George,

Thank you for reminding me about your March email where you mentioned the owner of the HOTEL TMCH record.  I'm sorry if I haven't memorized The Uncollected Emails of George Kirikos as well as you have. My thank you would be a bit more sincere if you had actually framed it as a reminder, rather than comparing me to an amnesiac.

In any event I'll match my junk math with your junk math, particularly with regard to choice of denominators (and motivations for making such choices).  However, I will grant you that it is likely that abusive/gamed TMCH records will be used more often in Sunrise than other TMCH records on average -- because that is the reason they were recorded in the TMCH in the first place!

But you don't need to convince me that abuse/gaming of the TMCH is an issue.  I agree that it is and it seems to be coming from speculators.  As such, bona fide brandowners have as much of an interest in mitigating this problem as any other stakeholder group.

I note that according to your March email, the owner of the HOTEL TMCH record is Hotel Top Level Domain GMBH, the registry for .HOTEL.  I also note that number 10 on the list is LUXURY, owned by ILUX Holdings, which shares an address with the applicant fo the .LUXURY TLD (at a nice, upscale home in Hidden Hills, CA).  Perhaps a rule prohibiting registries from participating in Sunrise with a TMCH record that matches their TLD would help quite a bit.....  (Unless somebody has an argument that this is a Good Thing).  It also appears that we may not need to go too far afield to resolve many of the abuse/gaming problems, since of the four abusers identified, two are registries and one is a registrar.

However, if the goal of comparing these two percentages is to somehow convey or convince someone that TMCH gaming is a bigger or more serious problem than domain-based IP infringement, then it is completely unconvincing.

Finally, if you think that domain-based IP infringement is comparable to "granny eating a grape"  you will get extremely strong disagreement from me, along with every other brandowner, large and small, and their representatives that has ever sought to enforce their rights against an infringing domain name.  That is a premise that will get us nowhere, slowly. As is the premise that civil litigation is a preferable mechanism to resolving domain name infringement -- I could write a book on why that's not the case but I'm sure somebody else (Paul McGrady?) already has done so....

In any case, we should stop this "measuring contest" and move on to solving problems.....

Greg

On Mon, Jul 17, 2017 at 2:41 PM, George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:
Hello,

On Mon, Jul 17, 2017 at 2:00 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
> Of course, this proves that we actually "know" nothing of the sort.
>
> First, as far as I know, we have no idea whether the HOTEL or HOTELS TMCH
> registrations represent "gaming/abuse" (see my earlier email in this thread
> on "false positives").  These could be bona fide trademark registrations and
> bona fide TMCH registrations for all we know.  (As also noted in my earlier
> email, HOSTING and THE do appear to represent gaming/abuse.)

This re-raises the issue of who is in denial here, or whether this is
"Groundhog Day" or "50 First Dates". "HOTEL" was analyzed back in
March 2017, in the post at:

http://mm.icann.org/pipermail/gnso-rpm-wg/2017-March/001119.html<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmm.icann.org%2Fpipermail%2Fgnso-rpm-wg%2F2017-March%2F001119.html&data=02%7C01%7C%7Cb7a26d31dae34235757708d4cd4c143a%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636359174022771265&sdata=1mmMqXcMp3YJLGCzz7S1toSKMpm%2BcOCPFXqMeQPC5Vc%3D&reserved=0>

(section 6) and the same analysis applied to "HOTELS" (i.e. the
screenshots showed HOTELS.TLD strings also gamed and for sale), and
brought up other times too.

> Second, trying to manufacture a percentage of sunrise domain registrations
> based on "gamed/abused" TMCH records in the "average Sunrise" is artificial
> and useless.  We have no idea how many "gamed/abused" TMCH records have
> actually been registered in any given Sunrise (or the "average Sunrise"),
> and no information on which to base any assumptions.  So that "0.13" is a
> junk number, and shows nothing about "higher rates for gaming of the
> sunrises."  The only percentage that we could even hazard a guess at is the
> total number of "gamed/abused" records in the TMCH as a percentage of all
> TMCH registrations.  Taking the two known likely gamed/abused marks (THE and
> HOSTING) and dividing by the total number of TMCH records (approximately
> 40,000) yields a percentage of 0.00005.  Of course, that doesn't prove your
> point, but it's a more valid number than 0.13.  Even you assume 200
> gamed/abused records instead of 2, the percentage is still only 0.005
> (one-five hundredth of one percent).

You're trying to choose a larger base/denominator (percentage in the
TMCH, vs. percentage from the sunrise), when we've never been given
the opportunity to examine the entire TMCH database (which would
change the numerator). The minimal data we've had access to is from
the actual sunrise registrations, so that's why it belongs in the
denominator, as opposed to the total TMCH registrations.

Furthermore, your math is off by a factor of 100. When taking a
percentage, one divides the two numbers and then multiplies by 100.
e.g. 2 (your number, not mine) divided by 40,000 = 0.00005, = 0.005%
Of course, the correct numerator is not just "2" (it should be
higher), and the correct denominator is not 40,000 (it's more like
130).

> infringing.  Assuming for the sake of argument that this is also 20%, each
> UDRP represents roughly 25 infringing domains.  So, taking your assumption
> of a 0.1% rate for bringing UDRPs, that means that roughly 2.5% of all
> domains could be considered infringing.

I wasn't assuming 0.1% is the exact rate --- that was an upper bound,
for simplicity. UDRP rate is at best 10,000 domains per year in a UDRP
divided by 150 million domains, which is 0.007% (i.e. 0.00007 x 100%).
I used highly conservative upper/lower bands previously, just to get a
rough picture.

Also, one needs to understand that not all crime reaches a level
beyond "de minimis" damages (i.e. annoyance vs. damage). In retail,
there's the concept of "shrinkage", due to employee theft,
shoplifting, vendor fraud, etc. A certain percentage is inevitable,
and won't be prosecuted because it's so minor. The focus is on the
more serious cases, e.g. someone steals 100 iPhones, instead of the
granny eating a grape at a grocery store and not paying for it.

Many of the RPMs appear to be a disproportionate response to the
"granny eating a grape", rather than the the theft of 100 iPhones.
When the theft of 100 iPhones does take place, there are already laws
on the books to handle that situation (e.g. ACPA, or other
litigation).

Sincerely,

George Kirikos
416-588-0269<tel:416-588-0269>
http://www.leap.com/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leap.com%2F&data=02%7C01%7C%7Cb7a26d31dae34235757708d4cd4c143a%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636359174022771265&sdata=KvpzpyUnzhV4Aw4wafhbFrYBGRIX3t8OlGSecHiuiho%3D&reserved=0>
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