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

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

After thinking about this response, I realized that it probably came
across curt and unclear, so let me try to explain further what I
intended to say.

What I meant was the following: written justification for both Avri's
position and mine is needed in the GNSO final report.  In other words,
if written justification in the report is required from me to support
the position that the definition of 'confusing similarity' is broader
than just visual similarity, it is also required to support the position
Avri is espousing that the definition of 'confusing similarity' is
restricted to visual similarity.  That is why I requested the following
in a separate message on Saturday: "Please show me anything in the
report that establishes a single standard of visual." 

For those who were not involved in all of the New gTLD PDP, a little
history might be useful.  In the early discussions of 'confusing
similarity', there were those who advocated restricting the definition
to visual similarity. There were also those of us including myself who
supported a broader definition.  In the end, we ended up searching for
places where 'confusing similarity' was defined and referring to those
to be used as guidelines for understanding the term.  That resulted in
the discussion in the report that I referenced, most of which involved
the definition as discussed in international trade mark related
documents.

That discussion does not definitively define 'confusing similarity' in
any particular way but rather discusses various ways that it may happen.
In one of the references, it points out that the possibility of
confusion is not sufficient and therefore the probability of confusion
is also needed. Everyone will probably note that the ICANN
Implementation Team picked up this point in the DAG.

I believe that the discussion in the report supports the position that
the question that needs to be answered is whether the probability of
confusion may exist by a particular string regardless of whether the
confusion is caused by visual similarity or some other form of visual
similarity.  And I believe that the discussion in the report backs that
up.

Finally, I apologise if the wording of the response caused this
perception: "Please do not treat me like an idiot who disagrees with you
just to 
waste your time."  This is a debate that has occurred multiple times in
the PDP itself and during implemenation and I confess to being
personally frustrated that we are having to go through it again because
I felt that it had been put to rest, while still be aware that Avri
never did support it.

Chuck

> -----Original Message-----
> From: owner-gnso-idng@xxxxxxxxx 
> [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Gomes, Chuck
> Sent: Saturday, April 17, 2010 8:58 AM
> To: Avri Doria; gnso-idng@xxxxxxxxx
> Subject: RE: [gnso-idng] reporting back to the council
> 
> 
> It works two ways Avri.
> 
> Chuck 
> 
> > -----Original Message-----
> > From: owner-gnso-idng@xxxxxxxxx
> > [mailto:owner-gnso-idng@xxxxxxxxx] On Behalf Of Avri Doria
> > Sent: Friday, April 16, 2010 9:54 PM
> > To: gnso-idng@xxxxxxxxx
> > Subject: Re: [gnso-idng] reporting back to the council
> > 
> > 
> > Dear Chuck,
> > 
> > If the argument is written, it should be somewhere - give 
> us the url.  
> > Please point me to the document where the quotes are quoted and the 
> > argument is made.  i will review and send my questions back 
> based on 
> > my understanding of what the written words in the GNSO 
> recommendation 
> > say and mean.
> > 
> > Please do not treat me like an idiot who disagrees with you just to 
> > waste your time. And please do not get impatient with me I do not 
> > believe you have made the argument you believe you made.  I 
> have heard 
> > you claim its truth and i believe you believe it,  but have 
> not seen 
> > proof either logical or factual. Yes i have heard you speak 
> on it, but 
> > i have never seen a written chapter and verse of what you 
> are saying.
> > 
> > Once we know what exact lines you base your argument on with an 
> > explanation of how you interpret them, then we can get
> > into exegesis and real discussion.    And once you have it 
> > written , then you will be able to point to it for all time as the 
> > expression of your argument in a discussion that is
> > not likely to stop for a long time.    
> > 
> > Once you have it written either you will convince me and 
> others that 
> > your interpretation is correct or I will write my 
> commentary on your 
> > arguments and the discussion will go on at a deeper level.
> > 
> > a.
> > 
> > On 16 Apr 2010, at 17:40, Gomes, Chuck wrote:
> > 
> > > I have done that several times Avri in meetings where you
> > were present.
> > > It is disappointing that I have to use time again to repeat that 
> > > exercise but I will find some time to do so once more.
> > > 
> > > Chuck
> > > 
> > >> -----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.
> > >>>>>> 
> > >>>>>> 
> > >>>>>> 
> > >>>>>> 
> > >>>> 
> > >>>> 
> > >>>> 
> > >> 
> > >> 
> > >> 
> > 
> > 
> > 
> 
>