[wg-b] Comments on TM Sunrise +20 (-20)

[Milton Mueller <mueller@syr.edu>]

Sunrise +20 is not a serious proposal, so don't be worried. The +20 provision
is an obvious land grab by the TM interests that has no support outside their
own constituency. It is being made with full knowledge that they will have to
back down.

Palage's report says that the registrars proposed sunrise +5. The willingness
of many registrars to sell the rest of the world down the river for a shot at
registering lots of new names is well known, so this concession shouldn't be
taken too seriously, either. I see no way the TM holders can lawfully claim a
"right" to pregister variations, especially as there is no defined algorithm
for determining which 5 or 20 variations will be allowed. Such a proposal would
allow encroachments on speech and even on other trademark rights. The bulk of
opinion, and indeed logic and law, ought to start with the concept of sunrise
+0, at best. Even that will be a major concession worthy of spirited debate.

At any rate, the whole thing must go through a public comment. In commenting
upon the sunrise concept, keep in mind certain stringent conditions that are
being (or ought to be) applied to it, according to my reading of the report:

* sunrise provisions are limited to commercial, open TLDs, and do not include
noncommercial TLDs.

* sunrise rights are limited to the initial opening of the TLD

* sunrise provisions are limited to the testbed period, the initial 6-10 --
they are not intended to be a permanent feature of new TLD addition, although
no doubt the TM interests will try to make it so.

* sunrise means a retreat from what is now conceded to be an untenable idea of
a famous marks list.

* trademark owners have to pay for the names they pre-empt.

* presumably, conflicts among TM owners (and there will be thousands) will be
resolved purely on a first-come, first-served basis. The FCFS principle is
generally the right principle for assigning domain names, the only one
compatible with the concept of ICANN as a technical coordination body.

In short, this is a compromise and like all politically-dictated compromises it
is unsightly and morally objectionable to those of us with a principled view of
the issue. However, provided non-commercial TLDs are exempted and it is sunrise
+0, one could view this ugly arrangement the way a crippled man views a crutch
-- as something that allows a badly broken organism to engage in some forward
motion.

The sooner new TLDs are added the sooner certain people will learn that the sky
does not fall.

--MM