Re: [gnso-idng] Recommendation 2: Confusingly Similar strings

[Avri Doria <avri@xxxxxxx>]

Hi,

not that I am ready to endorse this interpretation, but a fragment of a thought:

If an algorithm is used to determine whether  a name should be thrown out for 
being confusingly similar,
in the case of the same entity, could that same test  be used in its obverse to 
only accept some string that hit a certain similarity factor?

the more serious part of this question relates to how does one decide that a 
translation, transliteration, or homonym is sufficiently similar.

I am assuming that there will also be a  class of names in the middle, those 
that are too close to be allowed, but not close enough to be seen as identical. 
 Again, an example could probably be found in the com-biz constellation where 
many names might be too similar to both to be allowed to either.

In any case, even if there is not a policy issue to be solved (and I do not 
quite accept that, though perhaps this is one of the dangers of using Trademark 
law for confusingly similar as I argued in my dissenting comment), there seem 
to be lots of wrinkles that would need to be ironed out.

cheers,
a
.



On 9 Dec 2009, at 12:15, Edmon Chung wrote:

> 
> Hi everyone,
> 
> Based on some study of the GNSO Final Report, it seems to me that we do not 
> need any new policy for addressing the issue of application for a confusingly 
> similar string by an applicant who is the registry (existing / future / 
> proposed) of the source of that confusing similarity.
> 
> In retrospect, at least on this issue, it was a good choice to have utilized 
> existing legal framework and international treaties as the basis of 
> "confusingly similar".
> 
> While I am not a lawyer, it seems to me from the reading of that body of 
> work/reference, that the concept of confusingly similar applies to that when 
> used by another entity.  If the application is from the same entity, then it 
> is in itself not "confusing"ly similar.
> 
> Perhaps, those who are a lawyer can correct me...
> 
> 
> 
> So, I think we can propose a resolution for the GNSO to clarify this issue 
> based on the following:
> 
> 
> While recommendation 2 in the GNSO Final Report states:
> 
> Recommendation 2: Strings must not be confusingly similar to an existing 
> top-level domain or a Reserved Name.
> 
> The detailed discussion on the recommendation includes:
> 
> vii-xi) Extracts describing the concept of "confusingly similar".  More 
> importantly that they correspond to a mark being confusingly similar to 
> another mark held by another entity, which would likely cause confusion, or 
> to cause mistake, or to deceive.  The key part being it held by another 
> entity.
> 
> xv)  Detailed work continues on the preparation of an Implementation Plan 
> that reflects both the Principles and the Recommendations. The proposed 
> Implementation Plan deals with a comprehensive range of potentially 
> controversial (for whatever reason) string applications which balances the 
> need for reasonable protection of existing legal rights and the capacity to 
> innovate with new uses for top level domains that may be attractive to a wide 
> range of users.
> 
> 
> With the action item to either inform staff to include the item in the 
> implementation (i.e. DAG), OR have an implementation team to provide specific 
> directives to staff on the issue.
> 
> 
> Edmon
> 
> 
> 
> 
>