Re: [gtld-council] Outcome of discussion on string checks on Wed 30 Aug in Amsterdam

[Ross Rader <ross@xxxxxxxxxx>]

Bruce Tonkin wrote:

> The proposal below goes well beyond ICANN's mandate of technical
> determinations and is old-fashioned censorship.
I too would like to see the criteria limited to something within ICANN's 
scope. "Confusingly similar" does have the benefit of being settled US 
law, but I don't see the value in building a process that requires 
dragging US law into the fray as a matter of standard process (i.e. "is 
this new string confusingly similar to others? dunno - we need to ask a 
judge."). There is also the argument that introducing this criteria 
lends credence to the emerging notion that these TLDs are the 
intellectual property of the proposer. I don't believe that this is the 
case, and I agree with the assessment that we should avoid fostering 
that impression through our policies.
You've also made the statement that:

""typo" confusion - is more related to the use of particular keyboards
where it is easy to make a mistake in typing.   E.g mistyping "n" for
"m".  Ie "tonkim" instead of "tonkin""

I also agree that the term "typo confusion" is inappropriately vague. 
Rather, instead of focusing on confusing similarity (legal basis), or 
typo-confusion (error based), we should instead use "typographically 
similar" as the criteria.
This would allow the process to execute in an objective typographic 
context, i.e "that by which something is symbolized or figured..." 
Typography has very little to do with the meaning, semantics and 
intentions of words and characters, and everything to do with how they look.
Strings that are typographically similar (i.e. TONKIM, TONKIN, T0NKIN, 
etc) are easily quantified - each of these strings is typographically 
similar to the other. Strings that are "confusingly similar" are not 
easily quantified without the involvement of expert legal opinion, which 
by definition, is simply an opinion and not a statement of fact - each 
of these strings "may" be confusingly similar, but this is just an 
opinion, and a judge may be swayed by a superior arguement (which, if he 
is, would mean that the string could be deemed suitable for 
implementation, leaving registrants holding the bag over whether or not 
people are actually being confused or mislead by the string.)
Don't we want to implement simple processes that can be predictably 
repeated with very little overhead? Or are we doomed to a future of 
specialist committee's that will make subjective determinations about 
various parts of the application based on what their opinions "as experts"?
(re: to the point of whether or not a string is rooted in a 
typo-confusion, is probably something that should be left for the courts 
to figure out. i.e. I would expect Verisign to file for an injunction 
and go through the courts if someone proposed a string that they felt 
infringed on their trademarks or otherwise violated their intellectual 
property rights by misleading their customers, etc....)
-ross