[comments-wgb] Comments on "Sunrise Plus Twenty" proposal

[Mark Chen <markchen@fas.harvard.edu>]

Dear Sir or Madam:

A number of individuals have objected to the "Sunrise Plus Twenty"
proposal that would grant all trademark and servicemark holders the
preemptive right to register names in new extensions. (For example, see
Attachment #3 to the Working Group B Report, as well as
http://sunrise.open-rsc.org/support.html for a list of individuals who
concur with the objections to Sunrise Plus Twenty.)
 
I would like to comment further on why Sunrise Plus Twenty should not be
adopted. It has been argued that giving additional protection to trademark
holders beyond that afforded by trademark law would reduce confusion among
internet users. Consumers should be confident, so the argument goes, that
when they type in a URL they will be taken to a web page consistent with
their expectations.

But by giving overly broad protection to all trademark and service mark
holders regardless of the nature, function, and scope of the underlying
mark, the Sunrise Plus Twenty Proposal may in fact increase confusion
among internet users.

Consider, for example, the text "pet". Multiple competing U.S. trademarks
and service marks exist on "pet", but almost invariably the marks have
nothing to do with domesticated animals. The marks instead are for such
things as dental supplies, t-shirts and sweatshirts, entertainment
services, computer software used for space system engineering, etc. Now
consider if the Sunrise Plus Twenty proposal were adopted with respect to
a new ".shop" extension. This would be conducive to the use of the domain
name "pet.shop" in a way that is confusing to internet users. It is
difficult to see how the goods and services currently included under U.S.
"pet" trademarks would be consistent with the expectations of a consumer
typing in "pet.shop." Similar problems would arise for words like "cat,"
"sex," and doubtless many other trademarks.

Thus, the indiscriminate protection that would be given to trademark and
service mark holders under Sunrise Plus Twenty would not respect how marks
actually function in commerce. As a result, Sunrise Plus Twenty would not
only go well beyond ICANN's mandated authority; it would in many cases
serve to increase confusion among internet users.

Sincerely,

Mark A. Chen