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@gnso.icann.org [mailto:owner-council@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@dotasia.org>
To: "'Council GNSO'" <council@gnso.icann.org>


Agreed.
Edmon


-----Original Message-----
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-----
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
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-----Original Message-----
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
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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@ipjustice.org