Hi, Thanks. What I do not have yet is written chapter and verse to quote for the arguments. It will take me time to get that all sorted and i can use help in doing so. It might be good to start developing a well formed and well documented NCSG position on this issue. a. On 17 Apr 2010, at 09:37, Milton L Mueller wrote: > I don't think your reply is so weak, especially when it quotes the DAG3 section 3.4.1. > Really what he seems to be arguing is that an incumbent TLD operator can control the "meaning" of a TLD, not just string confusion. > When Chuck quotes trademark treaties you might remind him that trademark law applies to a wide variety of identifiers, not just domain names, and that TLDs have no colors, are rarely "pronounced" as words or normal names are pronounced - so a lot of the TM confusing similarity stuff just doesn't apply. > >> -----Original Message----- >> From: Non-Commercial User Constituency [mailto:NCUC- >> [log in to unmask]] On Behalf Of Avri Doria >> Sent: Friday, April 16, 2010 10:27 PM >> To: [log in to unmask] >> Subject: Re: [NCUC-DISCUSS] are confusing similar gTLDs not confusing if >> the same registry has them all? >> >> Hi, >> >>>> Or is that battle already lost? >>> >>> I do not believe it is lost. The DAG from m reading still upholds the >> visual criteria for confusing similarity. >>> >>> It is just that Chuck and others repeat that it includes meaning so >> often and so absolutley that it is gaining currency and while I don't >> find it in my reading of DAGv3, they claim it is a viable option for >> objection by a current string holder. >> >> But Chuck is going to fight tooth and nail for the position. >> >> The following is his argument. i will be working on a response in the >> next days although i already sent a preliminary response which i will >> append after his message. >> >> >>> >>> Let me first start with your minority statement that accompanied the >>> final GNSS Report: >>> http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta- >> 08aug07.htm#_T >>> oc48210874. If you believed that the GNSO report defined confusing >>> similarity as visual only and that that was a position of the GNSO >>> Council, then it would not have been necessary for you to express the >>> following reservations about that recommendation: >>> >>> "In the first instance I believe that this is essentially a technical >>> issue that should have been resolved with reference to typography, >>> homologues, orthographic neighbourhood, transliteration and other >>> technically defined attributes of a name that would make it >>> unacceptable. There is a large body of scientific and technical >>> knowledge and description in this field that we could have drawn on." >>> >>> "By using terms that rely on the legal language of trademark law, I >>> believe we have created an implicit redundancy between recommendations >> 2 >>> and 3. I.e., I believe both 2 and 3 can be used to protect trademarks >>> and other intellectual property rights, and while 3 has specific >>> limitations, 2 remains open to full and varied interpretation." >>> >>> "As we begin to consider IDNs, I am concerned that the interpretations >>> of confusingly similar may be used to eliminate many potential TLDs >>> based on translation. That is, when a translation may have the same or >>> similar meaning to an existing TLD, that the new name may be >> eliminated >>> because it is considered confusing to users who know both." >>> >>> Now let me focus on the language in the final report. Please see the >>> Recommendation 2 Discussion in the report, the first item under the >>> subtitle "TERM OF REFERENCE -- SELECTION CRITERIA". I first call your >>> attention to the first item: "i) This recommendation has support from >>> all the GNSO Constituencies. Ms Doria accepted the recommendation with >>> the concern expressed below[39]." As you know, your concerns are the >>> ones pasted above. >>> >>> Item iii confirms that the issue discussion that ". . . the issues >> found >>> below have been discussed at length, both within the Committee and >>> amongst the Implementation Team." The discussion goes on in item iv >> to >>> say, "The Committee used a wide variety of existing law[42], >>> international treaty agreements and covenants to arrive at a common >>> understanding that strings should not be confusingly similar either to >>> existing top-level domains like .com and .net or to existing >>> trademarks[43]." I won't quote all of them here because there are a >> lot >>> of them but let me quote a few that are particularly relevant to our >>> discussion now. >>> >>> Item vii says, ". . . the 1883 Paris Convention on the Protection of >>> Industrial Property[48]. It describes the notion of confusion and >>> describes creating confusion as "to create confusion by any means >>> whatever"". >>> >>> Item x says, ". . . the European Union Trade Mark Office provides >>> guidance on how to interpret confusion. "...confusion may be visual, >>> phonetic or conceptual. A mere aural similarity may create a >> likelihood >>> of confusion." >>> >>> Item xi says, ". . . Likelihood of association is not an alternative >> to >>> likelihood of confusion, "but serves to define its scope". Mere >>> association, in the sense that the later mark brings the earlier mark >> to >>> mind is insufficient to find a likelihood of confusion, unless the >>> average consumer, in bringing the earlier mark to mind, is led to >> expect >>> the goods or services of both marks to be under the control of one >>> single trade source. "The risk that the public might believe that the >>> goods/services in question come from the same undertaking or, as the >>> case may be, from economically-linked undertakings, constitutes a >>> likelihood of confusion...". (found at >>> http://www.patent.gov.uk/tm/t-decisionmaking/t-law/t-law-manual.htm)" >>> >>> There is of course much more in this discussion than I quoted above >> but >>> I don't there is anything that says that visual similarity is the only >>> area of possible confusion. If you can find anything in the report >> that >>> says that, please point it out. >>> >>> As you know, the ICANN Staff implementation team attempted in their >>> early steps to limit confusing similarity to visual similarity only >> and >>> I challenged them on that several times, pointing them to the >> discussion >>> section mentioned above. Consequently, in DAG3 we find the following: >>> "The visual similarity check that occurs during Initial Evaluation is >>> intended to augment the objection and dispute resolution process (see >>> Module 3, Dispute Resolution Procedures) that addresses all types of >>> similarity. (From DAG3 section 2.1.1.1)" The standards for a string >>> confusion dispute are found in DAG3 section 3.4.1: "A DRSP panel >> hearing >>> a string confusion objection will consider whether the applied-for >> gTLD >>> string is likely to result in string confusion. String confusion >> exists >>> where a string so nearly resembles another that it is likely to >> deceive >>> or cause confusion. For a likelihood of confusion to exist, it must be >>> probable, not merely possible that confusion will arise in the mind of >>> the average, reasonable Internet user. Mere association, in the sense >>> that the string brings another string to mind, is insufficient to find >> a >>> likelihood of confusion." Note there is no restriction to visual >>> similarity only. >> >> >> my weak response: >> >> --- >> >> It is late and I will write in detail with chapter verse and >> interpretation later. You will possibly be surprised that i use many of >> the same lines you have quoted to make my point. >> >> A few quick points now >> >> - As i said the fact that i expressed a concern that something might >> happen is not an acknowledgment that this thing has been permitted. I >> was predicting the possibility of discussions such as we are having. >> >> - Yes, we discussed many contributions to the point we reached. But none >> of those discussions firmly established a single standard beyond visual. >> The fact that the background material from the EU includes conceptual >> does not mean that this was accepted as part of the standard by the >> council. Though of course it might be relevant in a court case, I don't >> know. >> >> - I do agree that the staff has fuzzed up the borders a wee bit on >> confusing similarity and yes the DAGv3 does define it a way that allows >> confusion and that if it stays this way it will eventually be a court >> that decides what it really means. DAGv1 was much better in this >> respect. >> >> - you quoted >> >> DAG3 section 3.4.1: "A DRSP panel hearing >> a string confusion objection will consider whether the applied-for gTLD >> string is likely to result in string confusion. String confusion exists >> where a string so nearly resembles another that it is likely to deceive >> or cause confusion. For a likelihood of confusion to exist, it must be >> probable, not merely possible that confusion will arise in the mind of >> the average, reasonable Internet user. Mere association, in the sense >> that the string brings another string to mind, is insufficient to find a >> likelihood of confusion." >> >> This talks about 'resemblance' which is a term that specifically refers >> to how things look. >> 'Mere association' on the other hand is the best one ever get out of >> translation. >> >> What this has done, is made the issue of transliteration more difficult >> to argue and this because establishing whether the average Internet user >> is one who can look at hebrew letters and ascii letter and visually see >> the same thing could be a little challenging. One would also have to be >> able to prove that there was an exception in the transliteration. >> >> More later. >> >> ---- >