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Username: DomeBase
Date/Time: Sat, August 18, 2001 at 7:06 PM GMT
Browser: Netscape Communicator V4.77 using Windows NT 5.0
Subject: Great. Thanks Bill.  Thanks Michael.  I offer some comments.

Message:
 

 
Bill, thanks so much for doing this.  Great information. 

Michael, thanks for being willing to talk about this (if your original Sunrise policy and rules had been enforced with simple edits when registrars submitted Sunrise registrations, we would not be in this mess!).

Bill, you wrote: "LAND RUSH - SEPTEMBER 12th: The Land Rush (Start-Up) Registration Period is anticipated to proceed on schedule, beginning September 12th, 2001.  The domain names alleged to have been fraudulently registered in the Sunrise period will NOT be challenged by Afilias before September 12th, and will NOT be available for Public registration during the Land Rush Period.  The Land Rush will proceed WITHOUT these disputed domain names. Only the domain names still unregistered at the end of the Sunrise period will be available for Land Rush registration on September 12th."

My comments: This is what we thought.  Without additional action to keep track of Land Rush "winners" for Sunrise registered names and give them some rights, this would be very unfair.

You wrote: "Any  resolution of Sunrise Challenges by Afilias will take place much later, after the end of the 120-day Sunrise Challenge period.  Those domain names successfully challenged will be made available later for Public registration by Afilias.  The exact method of allocating these challenged domain names to Public registrants has not been defined yet by Afilias, but Afilias will take into consideration the pre-registration efforts that have already been made by Land Rush applicants.  Afilias will arrive at an allocation method which it considers "equitable toward Land Rush applicants".

My comments: Good to at least hear them at least talking about Land Rush applicants now.  This is progress.  DomeBase proposal would explicitly restore to Land Rush applicants what would otherwise be ripped by Sunrise Squatters.  I am nervous about letting Land Rush go past without making rights of Land Rush winners explicit beforehand.  Please, please, please at least keep track of who would have won Land Rush for all names to keep policy options open.

You wrote: "'FACIALLY UNQUALIFIED' vs. 'SUSPICIOUS NAMES": The ICANN bulletin of August 14th says that after the 120-day Sunrise Challenge Period ends, Afilias will itself challenge any remaining Sunrise domain names that are "Facially Unqualified" (i.e. did not "on their face" qualify according to Sunrise requirements).  But the Afilias announcement of August 15th uses more general, less specific language, saying that "Suspicious Names" which remain at the end of the Sunrise Challenge Period will be challenged by Afilias."

My comments: If these terms are quite different, then why are ICANN and Afilias saying different things and who do we believe?  I guess I'll go with Afilias, but I wish they'd say the same thing.

You wrote: "Afilias intends to apply a fairly thorough analysis of Sunrise registrations, to extract a list of "Suspicious" domain registrations using various criteria in a somewhat aggressive manner, rather than a simple or passive scan of registration records.  Afilias prefers not to discuss specific algorithms it will use for its analysis as such discussion may hinder their efforts to successfully identify trademark imposters.  Afilias will NOT be able to identify 100% of fraud, but will successfully identify a very large percentage of the fraud."

My comments: This is very sad.  This is precisely what Afilias wanted to avoid in the first place and precisely why they had the whole challenge and WIPO deal set up... and now look... they are stuck with having to make these judgements.  Afilias, get this monkey off your back!  Let the Land Rush folks have last chance to challenge for a modest fee after challenge period is over ala the DomeBase Proposal.  Otherwise, Afilias will find itself in a position comparable to that of the IRS.  The IRS develops algorithms to detect fraud, the fraudsters try to learn as much about the secret algorithms as possible to thwart them, the IRS revises the algorithms in response, etc. etc.  Afilias, this is a very expensive and labor intensive effort, and there will always be lots of people unhappy with the results.  Please consider carefully whether you want to go down this road.  Better to let Land Rush folks do the work and challenge what they wish, and let WIPO do what WIPO does best... judge trademark claims. 

"MY NOTE HERE:  It will be helpful to Afilias for Public domain applicants to provide clearly organized lists of Sunrise .info domain names which applicants suspect to have been fraudulently trademarked, categorized by type of fraud, and with clear reasons why you believe the domains to have been fraudulently registered. Do not report domain names where there are NOT reasonable grounds for suspicion."

My response: If Afilias insists on becoming a hybrid of WIPO and the IRS, then they will certainly need all the help they can get.  We do have to be careful though that this does not turn into a forum for harassment or revenge or defamation.  My preference would still be for challenges submitted to WIPO instead of "rat on thy neighbor" forum, but if Afilias insists then they will need the help.

You wrote: "And do NOT send generalized objections to the existence of a Sunrise registration period (i.e. philosophic objection to ALL Sunrise domain registrations) because that is NOT an issue for further consideration in this process. 

My comments: Yeah. I concluded this too.  For those of you who want no Sunrise Periods, you will not win this battle for .info.  You can fight for it in the next gTLDs.  You can also hope that Afilias will not make changes to protect Land Rush folks and the whole .info Sunrise process becomes a scandal so that the next gTLD will not have a Sunrise.

Your wrote:   WILL THE SUNRISE CHALLENGE PROCESS BE MODIFIED TO PROVIDE REMEDIES FOR NON-TRADEMARK-HOLDERS WHO ELECT TO PARTICIPATE IN THE SUNRISE CHALLENGE?  SHOULD NON-TRADEMARK-HOLDERS PARTICIPATE IN THE SUNRISE CHALLENGE? There will NOT be any modification of the rules or remedies in the Sunrise Challenge Period for non-trademark-holders.

My comments:  This is bizarre.  People who submitted bogus Sunrise registrations for non-trademarked in violation of the Sunrise Policy and Rules are now a protected from a challenge which transfer the name to the challenger.  This is OK?  But giving Land Rush winner the right to challenge without trademark interest is not OK?  I don't get it.  Those who steal are protected. Those who play by the rules are not.  C'mon Afilias, you just modified the challenge rules so that you could challenge Sunrise Squatters, why is it such a big deal to modify the rules so that LR winner can challenge Sunrise Squatters?  Sorry to get worked up here... I'll try to be more calm and professional... It just does not seem right.

You wrote: There will be little incentive for non-trademark-holders to file hallenges, because the remedy from a successful challenge is only intended for other trademark-holders, i.e. to file a replacement Sunrise Registration for that domain name but not a Public Registration.  Although non-trademark-holders are not prohibited from filing Sunrise Challenges, it is not recommended that they file challenges because of lack of direct remedy coming to the on-trademark Challenger therefrom.

My comments: Exactly :(

You wrote: WHAT HAPPENS TO UNPROCESSED CHALLENGES AT THE END OF THE SUNRISE CHALLENGE PERIOD, ON "DAY 121"? The 120 day deadline for the Sunrise Challenge Period is only a FILING deadline.  All new challenges must be FILED within 120 days.  However, the Sunrise Challenge Process will continue running after 120 days, as long as there are still active Challengers for a domain name and there is not yet an authenticated trademark-holder registrant for the domain name.  If Day 121 arrives and there is still a fraudulent trademark-holder holding a Sunrise registration for a particular domain name, any Priority or Non-Priority Challengers who filed on or before Day 120 and whose challenges have not yet been considered, will still be considered by WIPO until all challenges are exhausted or until a trademark-holder registrant has been authenticated.  When the last challenge is exhausted and the domain name is still registered to one or another Sunrise Registrant, then at that time it will be further reviewed (or scanned) by Afilias to determine if Afilias should file its own Sunrise Challenge of that domain name.

My comment: Again.  Afilias you are going down the road of trying to be a hybrid of WIPO and the IRS.  Leave this to Land Rush winner and WIPO.  Save yourself grief and give Land Rush pre-registrants something for their money.

You wrote: SANCTIONS AGAINST FRAUDULENT REGISTRANTS: The only sanctions discussed by Afilias toward fraudulent registrants are that the 5-year prepaid registration fees for such domain names will NOT be refunded when the domain name is successfully challenged.  Fraudulent registrants stand to entirely lose their registration fees.  (MY NOTE: Of course, those of us who have been paying multiple registrars for Land-Rush pre-reg fees on those same domain names have lost MUCH more money than this because of the frauds, and therefore feel a strong desire for "equitable allocation" of these domain names back to the Land Rush applicants at some time in the future).

My comments: Do not be so sure.  Check out article in the UK, The Daily Telegraph, I believe.  Legal expert there says that use of counterfiet TM information is illegal and that there will be a lot of legal action beyond the Sunrise challenge process.  (Hmmm... are there any famous Sunrise Squatters in the UK?)  For Sunrise Squatters who think that their liability is limited to their $100, in the UK and the US, you'd better check this out now.  You may be rudely surprised later.  Also check out information on use of counterfiet trademarks in U.S. federal law.  This is serious stuff folks -- makes all this Sunrise Challenge stuff seem small by comparison.  If I were a Sunrise Squatter, I would immediately contact Afilias, say I registered by mistake, and request that my registration be cancelled.  I would not wait for the other shoe to drop. The other shoe could be a lot bigger than the first one.

-------------------- Parting thought ---------------------

Q: How many Sunrise Squatters does it take to change a light bulb?

A: One, but you won't get your bulb back.
B: More than Afilias can pay for.
C: It's hard to tell, they don't give complete information.
D: None.  Sunrise Squatters would prefer than nothing changes.  They like the situation the way it is.
E: None.  Sunrise Squatters prefer the dark.
F: Only an attractive Sunrise Squatter can change a light bulb, ugly ones are "facially unqualified"

(other answers out there folks?)

Thanks again, Bill and Michael.  Thanks for talking to each other.  Maybe there is hope yet?
     
Sincerely, DomeBase     
     
     
     
     
     
     
     
     

 

Link: DomeBase.com


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