Hi, And consumer protection crew - everyone keeps claiming they do this or that to protect the consumer. To what extent is it true in this case? a. On 17 Apr 2010, at 17:47, Milton L Mueller wrote: > I'm at the ARIN meeting and wont be much help for the next 4 days. > Even though this issue really agitates me I suspect the TM law crew would be more helpful anyway (Wendy, KK, Robin) > --MM > >> -----Original Message----- >> From: Non-Commercial User Constituency [mailto:NCUC- >> [log in to unmask]] On Behalf Of Avri Doria >> Sent: Saturday, April 17, 2010 11:07 AM >> To: [log in to unmask] >> Subject: Re: [NCUC-DISCUSS] are confusing similar gTLDs not confusing if >> the same registry has them all? >> >> 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. >>>> >>>> ---- >>> >