Re: [gnso-idng] 3rd Draft on Sting Similarity

[Avri Doria <avri@xxxxxxx>]

Hi,


On 15 Dec 2009, at 22:01, Gomes, Chuck wrote:

> Avri,
> 
> It is not an expansive definition of confusingly similar.  The GNSO 
> recommendations, as I already pointed out many times, includes meaning as 
> well as visual and other forms of possible similarity.  So why do you keep 
> claiming that meaning is an expansion of the definition?  

Because I believe it is an expansive definition.

As with you, I participated in entire new gTLD process and believe that we did 
settle on visual confusing similarity as the primary type of confusing 
similarity issue.  I have agreed, that in the objection procedure claims of 
meaning may be used, but I believe these are secondary considerations and not 
part of the base definition of confusingly similar but part of an expanded 
definition that needs to be argued for materiality in the objection itself.  

I agree that there may be ambiguity in the definitions we gave to Staff on this 
but I believe they got it right in the first DAG when they referred only to 
visual confusing similarity.  They have been expanding it ever since because of 
public pressure from certain quarters and because some people keep claiming it 
was meant to be included.  But I think that is not the case and I think having 
people claim it is, does not make it so. I am, therefore, trying to present the 
other side of the issue.  For better or worse, I felt my previous council role 
prohibited me from speaking out on this, but now that I am no longer hamstrung 
by vows of neutrality (which we all interpret differently) on any of the 
issues, I feel it is important to call it like I see it.  I do not feel I can 
let the presumption of meaning based similarity as a primary subject of 
confusing similarity stand without objection.

Also, as I and others, have argued, the notions of definition, translation and 
meaning as a criteria of confusing similarity are very problematic and highly 
subjective, so I believe that including it as the basis of examples, is 
dangerous as it brings up complicating issues that distract us from the core 
issues. 

a.



> 
> Chuck 
> 
>> -----Original Message-----
>> From: owner-gnso-idng@xxxxxxxxx 
>> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Tuesday, December 15, 2009 3:38 PM
>> To: gnso-idng@xxxxxxxxx
>> Subject: Re: [gnso-idng] 3rd Draft on Sting Similarity
>> 
>> 
>> Hi,
>> 
>> Yes, I know you used examples that Eric had previously 
>> included, but the more I thought about it the more 
>> uncomfortable I felt in using an example that relied on what 
>> I consider an expansive definition of confusingly similar.  
>> Hence my request that if we included examples, they be ones 
>> of the visually confusingly similar type - a type I was 
>> trying to call the LCD type - but that itself ended up confusing.
>> 
>> a.
>> 
>> 
>> 
>> On 15 Dec 2009, at 20:40, Gomes, Chuck wrote:
>> 
>>> Avri,
>>> 
>>> I did not rewrite those examples; I simply made nonmaterial 
>> edits.  At the same time, I do support leaving the examples 
>> because I think they go a long ways toward explaining our 
>> point.  But, like I said, I am fine with adding other 
>> examples in addition to meaning examples.
>>> 
>>> Chuck
>>> 
>>>> -----Original Message-----
>>>> From: owner-gnso-idng@xxxxxxxxx
>>>> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
>>>> Sent: Tuesday, December 15, 2009 12:50 PM
>>>> To: gnso-idng@xxxxxxxxx
>>>> Subject: Re: [gnso-idng] 3rd Draft on Sting Similarity
>>>> 
>>>> 
>>>> 
>>>> On 15 Dec 2009, at 15:23, Gomes, Chuck wrote:
>>>> 
>>>>> What in my rewrite assumes that translation is the primary
>>>> cause for 'confusingly similar'? 
>>>> 
>>>> 
>>>> the example of "duck soup" and "鸭汤" (yā tāng)  is a meaning based 
>>>> example (assuming '鸭汤' refers to the same thing as 'duck soup' and 
>>>> not "fooled you with a silly example")
>>>> 
>>>> as i expect are: 
>>>> 
>>>>> .arab and an Arabic version of the same; 2) The DotAsia
>>>> Registry would
>>>>> not be allowed to  offer a Chinese version of .asia;
>>>> 
>>>> since they could not be consider beneficially similar if 
>> they weren't 
>>>> also considered confusingly similar, but the confusing similarity 
>>>> would then be based on having the same meaning.
>>>> 
>>>> assuming that they are not simalar based on meaning would indicate 
>>>> that they could be applied for without any problem.
>>>> 
>>>> this is omitting the fact that because they are geographical they 
>>>> have other issues attached to them - the geographical  issues.
>>>> 
>>>> a.
>>>> 
>>>> 
>>>> 
>> 
>> 
>>