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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.
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”
For the above reasons, we are unsupportive of the current wording of item 10 of the Executive Summary of the GNSO Comments in Response to the ccNSO-GAC Issues Report on IDN Issues. This concern also relates to the wording used in GNSO’s new gTLD policy recommendations (ASCI) regarding the introduction of new domain names for “confusingly similar”.
The terminology “confusingly similar” lends itself to the expansion of trademark rights to domain names by commercial uses and governments to the disadvantage of non-commercial users. ICANN should refrain from taking on consumer protection type roles (such as preventing “confusion” in people) and only regulate issues related to the technical coordination of the Domain Name System.