[gnso-idn-wg] Fwd: Re: [gtld-council] Outcome of discussion on string checks on Wed 30 Aug in Amsterdam

[Mawaki Chango <ki_chango@xxxxxxxxx>]

FYI and consideration.

--- Ross Rader <ross@xxxxxxxxxx> wrote:

> Date: Sun, 10 Sep 2006 11:00:53 -0400
> From: Ross Rader <ross@xxxxxxxxxx>
> To: Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>
> CC: gtld-council@xxxxxxxxxxxxxx
> Subject: Re: [gtld-council] Outcome of discussion on string checks
> on Wed
>  30 Aug in Amsterdam
> 
> Bruce Tonkin wrote:
> 
> > The proposal below goes well beyond ICANN's mandate of technical
> > determinations and is old-fashioned censorship.
> 
> I too would like to see the criteria limited to something within
> ICANN's 
> scope. "Confusingly similar" does have the benefit of being settled
> US 
> law, but I don't see the value in building a process that requires 
> dragging US law into the fray as a matter of standard process (i.e.
> "is 
> this new string confusingly similar to others? dunno - we need to
> ask a 
> judge."). There is also the argument that introducing this criteria
> 
> lends credence to the emerging notion that these TLDs are the 
> intellectual property of the proposer. I don't believe that this is
> the 
> case, and I agree with the assessment that we should avoid
> fostering 
> that impression through our policies.
> 
> You've also made the statement that:
> 
> ""typo" confusion - is more related to the use of particular
> keyboards
> where it is easy to make a mistake in typing.   E.g mistyping "n"
> for
> "m".  Ie "tonkim" instead of "tonkin""
> 
> I also agree that the term "typo confusion" is inappropriately
> vague. 
> Rather, instead of focusing on confusing similarity (legal basis),
> or 
> typo-confusion (error based), we should instead use
> "typographically 
> similar" as the criteria.
> 
> This would allow the process to execute in an objective typographic
> 
> context, i.e "that by which something is symbolized or figured..." 
> Typography has very little to do with the meaning, semantics and 
> intentions of words and characters, and everything to do with how
> they look.
> 
> Strings that are typographically similar (i.e. TONKIM, TONKIN,
> T0NKIN, 
> etc) are easily quantified - each of these strings is
> typographically 
> similar to the other. Strings that are "confusingly similar" are
> not 
> easily quantified without the involvement of expert legal opinion,
> which 
> by definition, is simply an opinion and not a statement of fact -
> each 
> of these strings "may" be confusingly similar, but this is just an 
> opinion, and a judge may be swayed by a superior arguement (which,
> if he 
> is, would mean that the string could be deemed suitable for 
> implementation, leaving registrants holding the bag over whether or
> not 
> people are actually being confused or mislead by the string.)
> 
> Don't we want to implement simple processes that can be predictably
> 
> repeated with very little overhead? Or are we doomed to a future of
> 
> specialist committee's that will make subjective determinations
> about 
> various parts of the application based on what their opinions "as
> experts"?
> 
> (re: to the point of whether or not a string is rooted in a 
> typo-confusion, is probably something that should be left for the
> courts 
> to figure out. i.e. I would expect Verisign to file for an
> injunction 
> and go through the courts if someone proposed a string that they
> felt 
> infringed on their trademarks or otherwise violated their
> intellectual 
> property rights by misleading their customers, etc....)
> 
> -ross
>