[council] Response to ccNSO/GAC Issues report
Robin Gross
robin at ipjustice.org
Mon Feb 11 12:36:11 UTC 2008
Chuck,
I agree with you that trademarks are only a subset of "confusingly
similar". The point is that trademarks are outside of the realm of
technical confusion, and only technical confusion should be included
within the "confusingly similar" issue since that is all that is
within ICANN's scope of authority.
I disagree that international law says that domain names, without any
analysis of their use, can be considered confusingly similar. Please
remember the presentation that Professor Christine Haight Farley,
American University international trademark law expert, gave to us
in San Juan, where she attempted to explain this key point in detail.
Her paper is online at: http://ipjustice.org/wp/2007/06/06/farley-
legal-briefing/
and the video of her presentation is at: http://www.keep-the-core-
neutral.org/node/31
It is a mistake for us to continue to expand trademark rights in
domain names beyond the scope of rights that trademark law grants.
So I can't support a GNSO position that does this.
Another suggestion that was provided at our dinner table last night
was that a better way to deal with confusion caused by similar script
characters (such as the "paypal example") is by the creation of new
FONTS that make the characters more distinct and thus eliminate this
type of confusion through a software fix (rather than by expanding
trademark rights). I agree that we should explore this approach.
Thanks,
Robin
On Feb 11, 2008, at 4:00 AM, Gomes, Chuck wrote:
> Recommendation 2 (confusingly similar) does not necessarily relate
> to trademarks although that could be a subset. The detailed
> discussion we included for this was taken from international law
> relating to trademarks but the intent was to apply the requirement
> on broader basis, in particularly for existing gTLDs that do not
> have any trade mark rights.
>
> Chuck
>
> From: owner-council at gnso.icann.org [mailto:owner-
> council at gnso.icann.org] On Behalf Of Robin Gross
> Sent: Monday, February 11, 2008 12:50 AM
> To: Council GNSO
> Subject: Re: [council] Response to ccNSO/GAC Issues report
>
> The same issue was raised at my table by the board members. The
> feeling was "if two countries are going to start a war over a
> domain name, that is their problem. They must pick 1 name." I
> think there is merit to this view. It was also mentioned that
> Chinese is a script that is used by a large community in just about
> EVERY country in the world, so does this mean every country gets a
> script in Chinese? In the US alone, there are large language
> communities for probably 10 scripts, giving the US 10 scripts under
> our rule. I do not believe this is what we intended.
>
> And a few other points were raised that need to be dealt with. In
> particular, the recommendation that "strings must not be
> confusingly similar" is misplaced. Only technical confusion is the
> type that should be dealt with here, not general confusion. I
> agree. This recommendation really does not make sense from a
> trademark viewpoint (although that is how it is intended), since a
> domain name, by itself, does not cause confusion, but only with
> relation to how the domain is used. We are going well beyond
> technical stability and trying to regulate other things that are
> outside ICANN's authority.
>
> Perhaps we should give more thought to our recommendations before
> we vote on them. I found the feedback from the board to be
> enormously useful and we should try to address their concerns
> before voting.
>
> Thanks,
> Robin
>
>
>
> On Feb 10, 2008, at 7:39 PM, Norbert Klein wrote:
>
>> I also agree with Avri's suggestion, where others already consented.
>>
>> At the table I was - and I later talking to people from another
>> table - there
>> was opposition to the "One IDNccTLD per one script per one language
>> group": "their government should decide to choose just one."
>>
>> I was surprised about the lack of sensitivity on the political/
>> social/cultural
>> implications. I argued - as a example - saying that it would be
>> highly
>> destructive in the presently tense situation, if the Malaysian
>> government
>> would give preference to the Chinese over against the Indian
>> ethnic sections
>> of the society by allocating only one IDNccTLD, but this was
>> dismissed
>> as "not ICANN's problem."
>>
>> Norbert
>>
>> -
>>
>> ---------- Forwarded Message ----------
>>
>> Subject: RE: [council] Response to ccNSO/GAC Issues report
>> Date: Monday, 11 February 2008
>> From: "Edmon Chung" <edmon at dotasia.org>
>> To: "'Council GNSO'" <council at gnso.icann.org>
>>
>>
>> Agreed.
>> Edmon
>>
>>
>>> -----Original Message-----
>>> From: owner-council at gnso.icann.org [mailto:owner-
>>> council at gnso.icann.org] On
>>> Behalf Of Adrian Kinderis
>>> Sent: Monday, February 11, 2008 10:11 AM
>>> To: Avri Doria; Council GNSO
>>> Subject: RE: [council] Response to ccNSO/GAC Issues report
>>>
>>>
>>> The same issue was raised at our table Avri.
>>>
>>> I believe your suggested change would be appropriate.
>>>
>>> Regards,
>>>
>>> Adrian Kinderis
>>
>> --
>> If you want to know what is going on in Cambodia,
>> please visit us regularly - you can find something new every day:
>>
>> http://cambodiamirror.wordpress.com
>>
>> Agreed.
>> Edmon
>>
>>
>>> -----Original Message-----
>>> From: owner-council at gnso.icann.org [mailto:owner-
>>> council at gnso.icann.org] On
>>> Behalf Of Adrian Kinderis
>>> Sent: Monday, February 11, 2008 10:11 AM
>>> To: Avri Doria; Council GNSO
>>> Subject: RE: [council] Response to ccNSO/GAC Issues report
>>>
>>>
>>> The same issue was raised at our table Avri.
>>>
>>> I believe your suggested change would be appropriate.
>>>
>>> Regards,
>>>
>>> Adrian Kinderis
>>> Managing Director
>>> AusRegistry Group Pty Ltd
>>> Level 8, 10 Queens Road
>>> Melbourne. Victoria Australia. 3004
>>> Ph: +61 3 9866 3710
>>> Fax: +61 3 9866 1970
>>> Email: adrian at ausregistry.com
>>> Web: www.ausregistrygroup.com
>>>
>>> The information contained in this communication is intended for the
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>>>
>>> -----Original Message-----
>>> From: owner-council at gnso.icann.org [mailto:owner-
>>> council at gnso.icann.org]
>>> On Behalf Of Avri Doria
>>> Sent: Monday, 11 February 2008 12:59 PM
>>> To: Council GNSO
>>> Subject: [council] Response to ccNSO/GAC Issues report
>>>
>>>
>>> Hi,
>>>
>>> At my table this evening, we had a conversation about Executive
>>> summary point #5 - specifically the last phrase "... without GNSO's
>>> concurrence"
>>>
>>> While explaning it this, I explained that it really refered to the
>>> need to have have resolved the issue as explained in #2 and the
>>> ICANn
>>> community had achieved a common agreement of an interim procedure.
>>>
>>> I am wondering whether we might be to change it to say: " without
>>> prior community concurrence"
>>>
>>> thanks
>>>
>>> a.
>>
>>
>
>
>
>
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA 94117 USA
> p: +1-415-553-6261 f: +1-415-462-6451
> w: http://www.ipjustice.org e: robin at ipjustice.org
>
>
>
IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA 94117 USA
p: +1-415-553-6261 f: +1-415-462-6451
w: http://www.ipjustice.org e: robin at ipjustice.org
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