Robin, You have indicated that you are uncomfortable with the proposed wording -- with what wording would you be comfortable? regards, Danny --- Robin Gross <[log in to unmask]> wrote: > NCUC: > > Below is a draft statement on the GNSO's policy > recommendation for > IDNs: “confusingly similar strings must be avoided.” > > We need to submit it in the next day or so, so > please let me know > soon if you have any suggestions for improving it. > > Thanks, > Robin > > ---------------- > > > > Non-Commercial Users Constituency > > > > Minority Statement on item 10 of the Executive > Summary of the GNSO > Comments in Response to the ccNSO-GAC Issues Report > on IDN Issues: > “Confusingly similar strings must be avoided.” > > > > This minority report address the wording of item 10 > of the Executive > Summary of the GNSO Comments in Response to the > ccNSO-GAC Issues > Report on IDN Issues (the “GNSO Comments”)[1], as it > presently states > that “confusingly similar strings must be avoided.” > > > > This wording was previously used by the GNSO Council > at its “Policy > recommendations and implementation guidelines for > the introduction of > new top-level domains”.[2] At the final draft > report, Recommendation > no. 02 states that: “Strings must not be confusingly > similar to an > existing top-level domain.” For reference purposes, > a footnote > relates the “confusingly similar” expression with > item 4(a) of the > UDRP.[3] > > > > We object to the adoption of the misleading wording > “confusingly > similar” in the GNSO Comments, grounded in the > following arguments: > > > > 1. Expansion of trademark rights to a broader field > of elements > > > > In adopting the “confusingly similar” expression, as > it is used by > item 4(a) of the UDRP, the GNSO Comments expand the > trademark logic > of protection to a wider range of elements, > especially in what > concerns with domain names and the way countries can > refer to > themselves through domain names. > > > > In adopting this kind of wording, the GNSO Comments > would be equating > domain names with trademarks as properties that > could be legally > protectable. Such expansion of trademark logics to > other elements, > such as domain names, not only broader the scope of > ICANN authority, > as addressed bellow, but also is incorrect in legal > terms. > > > In her “Legal Briefing Paper on GNSO Recommendations > for Domain Name > Policy”, American University Law Professor Christine > Haight Farley > stated that “trademarks are legally protected > intellectual property > because it is believed that the commercial use of a > mark by another > that is likely to cause confusion would injure > consumers. Trademarks > are legally protectable intellectual property also > because their > owners have developed valuable goodwill in the > marks. Neither of > these conditions of legal protection apply in the > case of domain > names.”[4] > > Non-commercial users of domain names will be > unfairly discouraged > from using trademarks. Even though a trademark law > analysis would > permit a broad range of confusingly similar domain > names that are > used for non-commercial purposes, the GNSO’s > recommendation would not. > > Perhaps a better policy choice might be to look to > the private sector > and open source software developers to create new > software that can > better prevent confusion caused by similar words, > such as new fonts. > > > 2. Only technical issues within scope of ICANN > authority > > > > In maintaining the “confusingly similar” expression > at item 10 of its > Executive Report, the GNSO Comments do not narrow > the scope of ICANN > authority to deal with cases related to technical > confusion. On the > contrary, it empowers ICANN to act in fields that it > does not have > adequate authority to decide upon, as the adequate > ways through which > a country or community can designate themselves. > > > > As the GNSO Comments address domain names, it is > important to > highlight that a domain name, by itself, does not > cause confusion, > but only with relation to how the domain is used. In > maintaining the > general confusion wording the GNSO Comments surpass > the concept of > technical stability and seems to end up regulating > other fields of > expression and consumer protection that are outside > ICANN´s authority. > > > > 3. “Confusion similarity” and “likelihood of > confusion” > > > There is also another issue of concern regarding the > definition of > what could be considered as “confusingly similar” > strings. In her > “Legal Briefing Paper on GNSO Recommendations for > Domain Name > Policy”, Law Professor Christine Haight Farley has > addressed this > topic, stating that “confusing similarity” and > “likelihood of > confusion” are two different concepts.[5] > > As mentioned in her Legal Briefing: “A determination > about whether > use of a mark by another is “confusingly similar” is > simply a first > step in the analysis of infringement. As the > committee correctly > notes, account will be taken of visual, phonetic and > conceptual > similarity. But this determination does not end the > analysis. Delta > Dental and Delta Airlines are confusingly similar, > but are not likely > to cause confusion, and therefore do not infringe. > As U.S. trademark > law clearly sets out, the standard for infringement > is where the use > of a mark is such “as to be likely, when used on or > in connection > with the goods of such other person, to cause > confusion, or to cause > mistake, or to deceive…” While it may be that most > cases of > confusing similarity are likely to cause confusion, > because the > infringement standard takes account of how the mark > is === message truncated === ____________________________________________________________________________________ Looking for last minute shopping deals? Find them fast with Yahoo! Search. http://tools.search.yahoo.com/newsearch/category.php?category=shopping