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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Avri,

You say "But none of those discussions firmly established a single
standard beyond visual."  Please show me anything in the report that
establishes a single standard of visual.

Chuck
 

> -----Original Message-----
> From: owner-gnso-idng@xxxxxxxxx 
> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
> Sent: Friday, April 16, 2010 10:20 PM
> To: gnso-idng@xxxxxxxxx
> Subject: Re: [gnso-idng] reporting back to the council
> 
> 
> 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.
> >>>>>> 
> >>>>>> 
> >>>>>> 
> >>>>>> 
> >>>> 
> >>>> 
> >>>> 
> >> 
> >> 
> >> 
> 
> 
>