Re: [gnso-idng] reporting back to the council

[Avri Doria <avri@xxxxxxx>]

Dear Chuck,

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.

a.







 
On 16 Apr 2010, at 18:52, Gomes, Chuck wrote:

> Avri,
> 
> Please see my response below.
> 
> Chuck
> 
> 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.
> 
>> -----Original Message-----
>> From: owner-gnso-idng@xxxxxxxxx 
>> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Friday, April 16, 2010 5:08 PM
>> To: gnso-idng@xxxxxxxxx
>> Subject: Re: [gnso-idng] reporting back to the council
>> 
>> 
>> Hi,
>> 
>> Please show exactly in the report and in the DAG were it says 
>> what you think it says.  Certainly various issues are 
>> discussed, but there is no statement of a council decision 
>> for confusing similarity to be more the visual.  I cannot 
>> recall or find such a decision.  I have gone looking and do 
>> not find it.  Yet, you keep repeating this as if repeating 
>> will make is so without showing exactly where this is proven 
>> to be the case.
>> 
>> As for my minority statement, i merely mention a concern that 
>> people might start doing what you are attempting to do. As I 
>> say,  I do not find proof for your position in the GNSO 
>> recommendations.  ANd I do not think that an anticipated 
>> concern that something might be taken the wrong way can serve 
>> as proof of a decision to do it that way.
>> 
>> a.
>> 
>> 
>> On 16 Apr 2010, at 16:54, Gomes, Chuck wrote:
>> 
>>> The report speaks for itself Avri as does the DAG in its 
>> latest version.
>>> I understand that you do not like that; that is why you submitted a 
>>> minority statement.
>>> 
>>> Chuck
>>> 
>>>> -----Original Message-----
>>>> From: owner-gnso-idng@xxxxxxxxx
>>>> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
>>>> Sent: Friday, April 16, 2010 4:18 PM
>>>> To: gnso-idng@xxxxxxxxx
>>>> Subject: Re: [gnso-idng] reporting back to the council
>>>> 
>>>> 
>>>> hi,
>>>> 
>>>> And that is the crux of one of our strong  differences of 
>> opinion.  
>>>> 
>>>> I believe that it was never the intent of the GNSO Council 
>> to allow 
>>>> 'meaning' within the category of 'confusingly similar'.
>>>> 
>>>> In fact, I believe the GNSO decision was to restrict it to visual 
>>>> confusion and I believe the DAG is as well:
>>>> 
>>>> Standard for String Confusion - String confusion exists where a 
>>>> string so nearly resembles another visually that it is likely to 
>>>> deceive or cause confusion. For the 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.
>>>> 
>>>> a.
>>>> 
>>>> On 16 Apr 2010, at 10:35, Gomes, Chuck wrote:
>>>> 
>>>>> But 'confusing similarity' is not restricted to only visual
>>>> confusion
>>>>> in the GNSO recommendations.
>>>>> 
>>>>> Chuck
>>>>> 
>>>>>> -----Original Message-----
>>>>>> From: owner-gnso-idng@xxxxxxxxx
>>>>>> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
>>>>>> Sent: Friday, April 16, 2010 9:04 AM
>>>>>> To: gnso-idng@xxxxxxxxx
>>>>>> Subject: Re: [gnso-idng] reporting back to the council
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> On 16 Apr 2010, at 08:47, Adrian Kinderis wrote:
>>>>>> 
>>>>>>> It seems unnecessary and against the original intention.
>>>>>> 
>>>>>> and as long as 'confusing similarity'  means 'likely to
>>>> cause visual
>>>>>> confusion,' it won't happen and there will be no problem as was 
>>>>>> intended by the council.
>>>>>> 
>>>>>> a.
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>> 
>>>> 
>>>> 
>> 
>> 
>>