RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting

[michael@xxxxxxxxxx]

Hello All:

I have personally know both Mike R and Tim for well over five years and
I hold them both in high regard from a professional and personal
standpoint, and in this exchange I find myself torn because both make
some valid points. What I would like to do in this email is instead of
dealing in abstract principle/policy terms lets look at concrete
examples and try to see if it is possible to reverse engineer a
solution/consensus position.

Tim, I believe you are concerned with trademark owners exerting quasi
monopolist rights over strings that prevent third parties from
legitimately using the mark in question. For purposes of discussion
lets look at the results of the .mobi premium name challenge process
that was administered by WIPO, see
http://www.wipo.int/amc/en/domains/casesx/2006/dpmobi0000-0199.html.
(DISCLOSURE - I was involved on behalf of .mobi with this process). I
believe the mobi premium name challenge was a success, however, others
may disagree. I think Tim's concern about a sunrise process is that it
allows companies like Time Warner to prevent terms like golf and skiing
from ever being used as a second level domain by registrants just
wanting to make fair use of the mark as provided for by law. What
people like Tim and others likely find concerning is that Time Warner
after prevailing in this process is merely warehousing the domain name,
golf.mobi as it does not appear to resolve. So the question needs to be
asked, who won in this process: the registry because it got a couple of
bucks off of trademark owner who is not even using the name; the brand
owner that had to pay thousands of dollars to secure a name which it
appears they have no immediate intention of using; the golf fan who
wanted to develop a website about his favorite sport but couldn't; a
company that wanted to provide a golf centric portal and couldn't; or
the speculator who lost out registering the name and generating PPC
advertising until he/she was able to sell it at a premium?

Mike, as a brand holder you have a portfolio of 20,000 plus domain names
of which 99% you do not want. However, if you delete them they will be
re-registered thus requiring your company to divert resources that
could be better used at competing with Google in the marketplace. You
and other trademark owners have a growing feeling that Sunrise periods
are nothing more than rackets where registration authorities seek to
extort a premium price. Where I have agreed with you personally in the
past is with regard to the viability of a notice and taken down like
process in connection with domains such as YAHOOOO.TLD . However, the
problem with trademark owners, or more appropriately their legal
counsel, is that they like to push the envelope. While your company
expends substantial resources responding to DCMA and other IP rights
notifications in connection with Yahoo's keyword advertising compliance
program, there is a big difference between taking away a person's rights
to advertising, and wiping away their online existence when you delete
their domain name.

Unfortunately, I do not have the specific solutions to these problems.
Hopefully these more concrete problems/examples may offer a way to
reverse engineer a solution to our problem. 

Best regards,

Michael D. Palage





-----Original Message-----
From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx]
On Behalf Of Tim Ruiz
Sent: Wednesday, May 16, 2007 10:38 AM
To: Mike Rodenbaugh
Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx; Smith,Kelly W
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting


Mike,

While it may seem that the world is ruled by IP interests, I would like
to think that isn't true (although this WG may be). But maybe I'm just
an idealist. The fact of the matter is that there is a difference
between the privilege of *defensively* protecting rights and the
mechanisms that resolve disputes after the fact. The UDRP is a very
cost effective way to do the latter.

The privilege of being granted defensive protection mechanisms not
provided for in local or national law should not come at everyone elses
expense. If the legislative process, or some or other regulatory process
can be gamed to provide for that, so be it. I guess we'll meet you on
the Hill. But as ICANN repeatedly claims, it is not a regulatory body,
does not control prices, and the #7 you propose is not within ICANN's
scope to mandate by their own repeated claims. The recent attempts by
registrars and others in regards to the current registry agreements
should make that clear.

And why should registries be concerned with improving your bottom line
at the expense of their own. That argument just doesn't hold water. You
are the IP holder. The cost of protecting your IP is yours. 


Tim 




-------- Original Message --------
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting
From: "Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>
Date: Tue, May 15, 2007 7:58 pm
To: "Tim Ruiz" <tim@xxxxxxxxxxx>,  "Smith, Kelly W"
<kelly.w.smith@xxxxxxxxx>
Cc: "Rosette, Kristina" <krosette@xxxxxxx>,  <gnso-pro-wg@xxxxxxxxx>


Currently, as far as I know, registries and registrars are the only
businesses in the world who purport to charge any other entity to
complain that the first party is or likely will be infringing or
materially contributing to the infringement of the second party?s legal
rights.  That needs to stop, and eventually logic will prevail and it
will stop, through policy, legislation and/or litigation.  The hope was
that ICANN stakeholders could agree to some binding policy rather than
pursue other avenues.

As a potential political compromise up to this point, realizing how long
the registries and registrars have been benefiting so nicely from this
reality, I have been willing to accept that maybe they could seek to
recover up to half of their costs of this from complaining parties. 
This I thought generous, and despite the fact that every other business
in the world must provide these complaint mechanisms as a cost of doing
business, and accordingly charge their customers more.  Registries and
registrars should do that too, their customers benefit from a cleaner
domainspace and so do the registration providers.  These businesses
certainly should not be arguing that rights protection mechanisms
should be a profit center for themselves.  They even seem unwilling to
agree to a general policy principle that their pricing should be
reasonably based on their costs?  

Unreasonable, unjustified costs will lead to less adoption of any rights
protection mechanism, therefore to more abusive registrations.  Abusive
registrations have high social and financial cost to the public and
impose higher litigation costs upon businesses.  Registries and
registrars need to accept more of the burden of minimizing abusive
registrations which they enable and profit from, and need to spread
that cost among their registrants, rather than seeking to profit from
rights protection mechanisms.

I support this as principle/policy stmt #7:

The fees charged by a gTLD for participation in its RPM MUST be
reasonably close to their actual or expected costs.

I also support Kelly and Avri?s other principles as stated.

Mike Rodenbaugh
Sr. Legal Director
Yahoo! Inc.

NOTICE:  This communication is confidential and may be protected by
attorney-client and/or work product privilege.  If you are not the
intended recipient, please notify me by reply, and delete this
communication and any attachments.



From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx]
On Behalf Of Tim Ruiz
Sent: Tuesday, May 15, 2007 1:51 PM
To: Smith,Kelly W
Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting

Currently, Registries are not required to justify most of their price
increases, and in fact, make no justification for their existing prices
whatsoever. I would be interested in knowing what basis or precedent
there is for any holder of legal rights of any kind to expect special
treatment and require justification of or a basis for Registry pricing
from new gTLD entrants. I propose this alternative language for #7:

gTLD registry operators MAY charge fees for participation in its RPM.
The amount of such fees MUST be at the gTLD registry operator's sole
discretion.

Also, many of the suggested *principles* (which are actually proposed
policies) use the phrase Prior Rights. The SOW uses the phrase legal
rights. There is a considerable difference. The latter does not, IMHO,
refer solely to the rights of TM holders, famous names, etc. Whereas
the implications of Prior Rights as is used in most of these policy
statements implies that distinction. I propose that all suggested
principles/policy statements use the phrase Legal Rights instead of
Prior Rights to be consistent with our SOW.


Tim 




-------- Original Message --------
Subject: RE: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting
From: "Smith, Kelly W" <kelly.w.smith@xxxxxxxxx>
Date: Tue, May 15, 2007 3:13 pm
To: "Rosette,  Kristina" <krosette@xxxxxxx>,  <gnso-pro-wg@xxxxxxxxx>
All, 
  
I propose the following alternative language for principle #7 (new
language in red): 
  
The fees charged by a gTLD for participation in its RPM SHOULD be
reasonable and each gTLD applicant MUST identify in its application the
basis of its fee calculation. on which it anticipates charging fees.  
I propose the following language regarding validation (revised from #8,
which we did not agree on).  If we cannot reach agreement, I believe
this at least has support: The Prior Rights on which a party bases its
participation and seeks to protect in an RPM SHOULD be subject to
actual validation, at least if the validity of such rights is
challenged validated.  
I propose the following new principle (based on the questionable
inclusion of U.S. registrations as a rights basis in the .asia launch),
and am happy to hear suggestions regarding alternative language: To the
extent a gTLD is intended for/targeted to a particular geographic
region, the Prior Right on which a rights owner bases its participation
in the RPM SHOULD originate from the laws of a country in that region.
Finally I agree with Avri's comments concerning applicability to IDNs,
and perhaps we can use this language, as the final principle: The
aforementioned principles should equally apply to both ASCII/LDH TLDs
and IDN TLDs. 
Kristina, let me know if you'd like me to reflect these in a further
redline, or if you'll be collecting everyone's comments into a new
version before the call tomorrow. Thanks 
Kelly Smith 
Intel Corporation 
________________________________ 
From: owner-gnso-pro-wg@xxxxxxxxx [mailto:owner-gnso-pro-wg@xxxxxxxxx]
On Behalf Of Rosette, Kristina 
Sent: May 14, 2007 2:29 PM 
To: gnso-pro-wg@xxxxxxxxx 
Subject: [gnso-pro-wg] Revised Proposals Chart Based on Today's Meeting 

All, 
Attached is an updated proposals chart that reflects the discussion
today.  I have also attached a redline.  As you will see, I have
indicated the current level of support (based on my notes) for the
proposals we discussed and as we discussed revising them.  Please
review them and let me know ASAP if I have mischaracterized the
"revised" proposal and/or the level of support.  
Tim, once you've had a chance to review, would you please post whether
any of these specific points could be used instead of your principles
1-6?  I will create a consolidated proposals chart shortly before our
call on Wednesday. Kristina 
<<Redline PRO WG Proposals Chart.DOC>> <<05142007 PRO WG Proposals
Chart.DOC>>