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

["Mike Rodenbaugh" <mxr@xxxxxxxxxxxxx>]

Frank, it is great to have your perspective, which is why I asked you to
join this WG.  I am trying to be balanced but the scales of "justice" in
this area have been tipped a long time and way afar of equilibrium, in
favor of squatters and to the benefit of registration providers.  

 

You make an interesting point about browser error search.  I have never
been a fan of that either.  The big distinction is that users have
chosen to use a Microsoft product, or Google search bar, thus "trusting"
those companies to give them relevant search results.  With direct
navigation, users are seeking to find that source of trust, that brand,
but instead are inadvertently directed elsewhere along the way, to the
detriment of the brand owner and the user.

 

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: franks@xxxxxxxx [mailto:franks@xxxxxxxx] 
Sent: Wednesday, May 16, 2007 9:59 AM
To: Mike Rodenbaugh; Tim Ruiz
Cc: Rosette,Kristina; gnso-pro-wg@xxxxxxxxx; Smith,Kelly W
Subject: Re: [gnso-pro-wg] Revised Proposals Chart Based on Today's
Meeting

 

Mike,

 

In all fairness, I think you're being overly dramatic about the state of
affairs in which we all find ourselves..  The UDRP "is cheap" when you
bear in mind that the cost to unseat a true squatter from 150 or 300
typo domain variations is lower on a per-offence basis than unseating
said squatter from 1 single offending registration.  Wholesale squatting
is cheaper to deal with via UDRP. All offenses are "alleged" until
proven. I have won 13 UDRP decisions against over reaching entities so I
have plenty of real-world experience relating to the desire of trademark
holders to impugn the rights of generic registrants. These UDRP costs
are distributed across millions of mark-holders.  Surely mark holders
should be obligated to pay "some cost" for trying to claim rights? I do
not view those costs as onerously as you do. It is a subjective optic.

 

I think IP holders need to take a more pragmatic view of the battle they
are fighting. Trademark violations in odd strings or namespaces without
traffic are just not worth fighting.  Anybody with a can of spray-paint
can violate Yahoo's trademark rights by running around the city and
graffiti painting "Yahoo" on the side of buses. Do mark holders want to
follow these millions of folks whitewashing the violations?

 

The answer IP stakeholders seem to be drilling to is "No, we want to
stop selling paint"..  or "We want to have a say who can buy what
paint". 

 

That's just not fair for the Fox to say to the Hens Mike. I see it as a
dangerous potential for over-reaching, particularly when the most
flagrant violations of trademark strings in the browser are given a free
pass by this group. Every day Yahoo, Microsoft and Google "steal
traffic" from trademark-holders and from me via toolbars and browser
error search.  I see these groups in no better light than the squatters.
Typing "Intel.xom" or .cpm and watching it resolve (via the browser) to
an error search page monetized by Yahoo, or MSN or Firefox may be
gentrified stealing, but it is stealing all the same. I don't view what
we're discussing here so much like a battle for IP holders rights as a
battle for ill-gotten traffic.  How can the large media companies unseat
squatters to recover more error search via the browser?

 

You've been a touch dramatic here Mike so allow me:  "There is no
freedom without justice and some of these changes smack of injustice to
domain registrants and registrars". Comparing registrars to flea markets
is just not a balanced viewpoint. Show some balance and I'll show some
love.

 

Frank.

 

 

        ----- Original Message ----- 

        From: Mike Rodenbaugh <mailto:mxr@xxxxxxxxxxxxx>  

        To: franks@xxxxxxxx ; Tim Ruiz <mailto:tim@xxxxxxxxxxx>  

        Cc: Rosette,Kristina <mailto:krosette@xxxxxxx>  ;
gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W <mailto:kelly.w.smith@xxxxxxxxx>  

        Sent: Wednesday, May 16, 2007 11:14 AM

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

         

        I think IP owners generally do not want the "privilege" of
"defensive protection mechanisms", but are essentially forced to use
them because the UDRP is so inefficient.  It is extremely far from 'cost
effective' since it costs under $100 to register a name and put up an
infringing website which makes money every day, yet costs many thousands
of dollars and many months to recover that name through the UDRP
(without hope of monetary damages).  Thus the squatters win every time
with a nice ROI.  

         

        Registries and registrars, by enabling massive infringement at
low cost, ought to take steps to minimize abusive registrations at their
own cost, other than trying to sell "defensive protection mechanisms" to
brand owners.  Every other business has had to provide complaint
mechanisms at their own cost, even though we would love to charge
complaining parties, that is just not acceptable to those complaining
parties....  Registration providers are like flea markets, selling cheap
space from which anyone can sell anything, including things that
blatantly infringe rights of others.  Long ago, courts held that flea
markets could be contributorily liable for doing that, under certain
circumstances.  I imagine courts will begin to draw the same conclusion
about the domain space, since registration providers are unwilling to
take any responsibility themselves.  

         

        This problem of course is bigger than just the registration
providers, Yahoo! and other businesses also provide tools for good uses
that are too often used to infringe rights of others.  Contributory
liability issues for those other businesses generally have been
addressed by the DMCA in the US, and industry standards following
passage of that law.  That would provide a nice model to absolve
registration authorities of any liability if they commit to act quickly
and reasonably in response to sworn complaints.  Perhaps this WG is not
the right forum for this discussion, because such a mechanism should
apply to all TLDs, not just new ones.  But it is a discussion that needs
to be had, ideally before a lot of time and energy is wasted by business
and registration providers to fight this in other fora.  Unfortunately
the registration providers benefit every day from existing policy, so I
am not optimistic that such discussion will happen soon or meaningfully,
but I will continue to press for it.

         

        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: franks@xxxxxxxx [mailto:franks@xxxxxxxx] 
        Sent: Wednesday, May 16, 2007 8:43 AM
        To: Tim Ruiz; 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

         

        Having watched this process quietly,  I coldn't agree more with
your statement Tim..

         

                ----- Original Message ----- 

                From: Tim Ruiz <mailto:tim@xxxxxxxxxxx>  

                To: Mike Rodenbaugh <mailto:mxr@xxxxxxxxxxxxx>  

                Cc: Rosette,Kristina <mailto:krosette@xxxxxxx>  ;
gnso-pro-wg@xxxxxxxxx ; Smith,Kelly W <mailto:kelly.w.smith@xxxxxxxxx>  

                Sent: Wednesday, May 16, 2007 9:38 AM

                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 <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 

                 

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