Bill, thanks so much for doing this. Great information.
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".
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
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."
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.
"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.
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
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.
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.
None. Sunrise Squatters would prefer than nothing changes. They like
the situation the way it is.
E: None. Sunrise Squatters prefer the dark.
Only an attractive Sunrise Squatter can change a light bulb, ugly ones are "facially
(other answers out there folks?)
Thanks again, Bill and Michael.
Thanks for talking to each other. Maybe there is hope yet?