Comments with an IDN and less-developed nation perspective

["S. Subbiah" <subbiah@xxxxxxxxx>]

*
Comments on the IRT Draft Report from primarily and IDN perspective - 
and particularly as it affects poorer and less developed parts of the 
world and their scripts.*
The GNSO new gTLD and IDN gTLD policy and guidebook development process 
has taken some 3 years with enough time for the less-well represented 
IDN community (almost no significant voice within GNSO and gTLD side of 
things) to review and comment. In contrast,  because of the voluminous 
changes now being introduced at rapid speed by the IRT to the earlier 
Guidebook/new gTLD Policy, there has been little time for anyone in the 
broader ICANN community (save for the folks in the IRT itself) let alone 
less-resourceful folks with an IDN perspective (not simply legal (and 
mostly Western legal) but cultural, linguistic and otherwise) of the 
comprehensive changes being proposed - many reversals of the previous 
Guidebook/Policy (in particular from the input from the GNSO IDN Working 
Group Report).
In any case, here is brief and non-comprehensive list of significant 
issues in the IRT proposals a they relate to IDN.
*(1) The two- page IRT report and recommendation on string confusion 
algorithm.* If string confusion algorithm check is to be expanded to 
include aural and "meaning" similarity (presumably across IDN scripts) 
then  it should be only done so with the caveat  that two compared 
strings should be deemed similar *IF and ONLY IF* they are found similar 
on *ALL 3 *expanded counts (visual, aural, meaning - (whatever  that 
means across IDN scripts!)). i.e. if similarity is found only on one if 
the 3 tests, the applied string should go through to th next step.
*
(2) Appendix One Table in the Introductory 14 pages:* Under the "Right" 
field relating to IDN Variations must only be allowed for placement in 
the IP Clearinghouse *IF and ONLY IF* the right-owning registrant 
already has that said right (presumably a trademark) in that script and 
in the country(or in some cases countries)   where that language/script 
is primarily spoken. Say a high threshold - e.g. trademarks filed in the 
country (or all of the countries) that collectively involve more than 
80% of the global population that uses that script.
*(3) Section 6 of the Introductory 14 pages:*  Where it is described 
that the "The SERS are: ", the clause "ownership of a registration of a 
national effect"  must be defined in the case of IDNs to mean that 
"national effect" means "all of the the nation or nations which 
collectively include  some high threshold (say 80% >) of the global 
population that uses the said IDN script/language.
*
(4) Section 4  (Protection of GPMS) of the Introductory 14 pages:* If 
string confusion algorithm check is to be expanded to include aural and 
"meaning" similarity (presumably across IDN scripts) then  it should be 
only done so with the caveat  that two compared strings should be deemed 
similar* IF and ONLY IF* they are found similar on *ALL 3* expanded 
counts (visual, aural, meaning - (whatever  that means across IDN 
scripts !)). ie. if similarity is found only on one if the 3 tests, the 
applied string should go through to th next step. ( To the extent a 
similar right is given to varying levels of protected strings in the 
general IRT document - this same condition should apply analogously if 
the criterion is to be expanded to 3 tests from the existing Guidebook 
single test).
*(5) Section 2 (IP Clearinghouse) of the Introductory 14 pages:* If 
either a watch service or an IP claims is to be setup that confers
any level of rights to preclude another registrant of the same after a 
Sunrise period (if any), an entity should only be able register or make 
use of that service (watch or IP claims) with regard to an IDN string 
*IF and ONLY IF* minimally that exact IDN string has already been 
trademarked (or otherwise legally protected) in *ALL* of the national 
jurisdictions that collectively include more than a high threshold (say 
> 80%) of the global population of the users of that IDN script/language.
*(6) Clause 2 of Appendix A relating to "WIPO".*  Such accommodation 
should only be deemed true IF and ONLY IF the limits and territorial 
character of trademark (and related) rights as it pertains to the IDN 
script of the particular IDN gTLD (and registry) fall overwhelmingly 
within the boundaries of the principal country or group of countries 
that collectively include a high-threshold (say > 80%) of the global 
population that uses that IDN script/language. e.g. a complainant with 
an exact IDN match that is not already trademarked (or an equivalent 
legal right already procured)  within all of  the said "principal or 
principal group of countries" should have no case against someone (or 
the registry operator) who has already previoulsy registered that string 
on a first-come-first-ever basis.
S. Subbiah
i-DNS.net International Inc.