Re: [Gnso-newgtld-wg-wt3] Gnso-newgtld-wg-wt3 Digest, Vol 6, Issue 4
Hi Folks, For tomorrow’s meeting on WT3, I’d like to share with you my experience with the string confusion contention set I was involved with. I represented the Government of Montenegro (which provides the .Me ccTLD) against Google’s proposed gTLD for .Meme in a string confusion contention set. A clueless panelist was appointed who was an admiralty lawyer from British Columbia. Very obscure. He also made his own conclusions that if the proposed gTLD were to be delegated it would not be confusing because he “thought so,” despite reputable external evidence that there might be collision problems and customer confusion. Should my client have to hire a linguist to prove the point? Apparently, ICANN’s linguists didn’t see a problem with it. Perhaps we can talk about whether it makes sense to include an ICANN-appointed panelist for future string confusion contentions. Looking forward to the call tomorrow! Very truly yours, Karen J. Bernstein Bernstein IP 200 Park Avenue, Suite 1700 New York, NY 10166 Tel: (212) 339-9955 Fax: (212) 682-0278 E-Mail: kjb@bernsteinip.com Web: www.bernsteinip.com Skype: K.Bernsteinlaw This message is intended only for the use of the addressee and may contain information that is privileged and confidential by law. If you are not the intended recipient, you are hereby notified that any review, use, dissemination, or copying of this communication is strictly prohibited. If you have received this communication in error, please forward the email back and delete all copies of the message and attachments.
On Feb 17, 2017, at 4:34 PM, gnso-newgtld-wg-wt3-request@icann.org wrote:
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Today's Topics:
1. Work Track 3: Agenda for 21Feb17 @20:00 UTC (Karen Day)
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Message: 1 Date: Fri, 17 Feb 2017 21:34:27 +0000 From: Karen Day <Karen.Day@sas.com> To: "gnso-newgtld-wg-wt3@icann.org" <gnso-newgtld-wg-wt3@icann.org> Subject: [Gnso-newgtld-wg-wt3] Work Track 3: Agenda for 21Feb17 @20:00 UTC Message-ID: <681f95e2119e424fa8c2b371f4dd8b6f@MERCMBX34D.na.SAS.com> Content-Type: text/plain; charset="utf-8"
Hi Everyone,
Hope you have all had a good week and that those of you who attended NCPH Intersessional had safe travels ?there and back again?.
We will have our next WT3 call this coming Tuesday, Feb 21st at 20:00 UTC. The main focus of our time this week will be Confusing Similarity Objections and String Similarity Evaluations as these two topics are quite often intermingled. I have attached the agenda here for your review.
In addition to the applicable sections of the Final Issue Report and AGB shown in the agenda, here are a few more links to some background documents you may wish to review prior to the call.
? https://www.icann.org/public-comments/sco-framework-principles-2014-02-11-en
? http://newgtlds.icann.org/en/program-status/odr/proposed-sco-framework-princ...
? https://www.icann.org/news/public-comment/report-comments-sco-framework-prin... However, before we jump into these topics, we will take a few minutes to review what we have so far for our CC2 questions. We are going to need to finalize the WT3 specific questions so that they may be formally presented to the plenary session of the PDP on 27th. To date we have had virtually no input on these questions from the WT3 membership. Robin is taking a final pass over what leadership and staff have pulled together thus far, but please do take time to review and comment on them this week. https://docs.google.com/document/d/1iZBCVEAJPBYEDg7jLsMHKkNczR_b6-jH2Wl5eVH-...
I look forward to talking with you all on the 21st.
Have a great weekend, Karen ____________________________ Karen L. Day, NCCP ACP Brand Protection & Registry Operations Manager Tel: + 1 919-531-6016 ? Mobile: + 1 919-599-4356 ? karen.day@sas.com SAS Institute Inc.? SAS Campus Drive ? Cary, NC 27513 USA www.sas.com
[S285-sas100K-TPTK40K-vert]
On Feb 20, 2017, at 8:24 PM, Karen Bernstein <kjb@bernsteinip.com> wrote:
Hi Folks,
For tomorrow’s meeting on WT3, I’d like to share with you my experience with the string confusion contention set I was involved with.
I represented the Government of Montenegro (which provides the .Me ccTLD) against Google’s proposed gTLD for .Meme in a string confusion contention set.
A clueless panelist was appointed who was an admiralty lawyer from British Columbia. Very obscure.
He also made his own conclusions that if the proposed gTLD were to be delegated it would not be confusing because he “thought so,” despite reputable external evidence that there might be collision problems and customer confusion.
Karen, The criteria was "confusingly similar", not that there might be collisions or confusions. There can be collision or confusions even considering only the legacy gTLDs, so the bar is not that low. From AGB: "A DRSP panel hearing a string confusion objection will consider whether the applied-for gTLD string is likely to result in string confusion. String confusion exists where a string so nearly resembles another that it is likely to deceive or cause confusion. For a 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." Frankly, I believe it was the right outcome for that specific objection...
Should my client have to hire a linguist to prove the point? Apparently, ICANN’s linguists didn’t see a problem with it. Perhaps we can talk about whether it makes sense to include an ICANN-appointed panelist for future string confusion contentions.
I was in the receiving end of an SCO from the largest TLD as objector, where they hired a linguist. Guess what ? We hired a linguist and a phonetics expert... although the actual objection and response are not published, much can be derived from the determination, available at https://newgtlds.icann.org/sites/default/files/drsp/25sep13/determination-1-... <https://newgtlds.icann.org/sites/default/files/drsp/25sep13/determination-1-...> . And before we suggest ICANN to appoint panelists, in that case the confusion that was ruled to be non-existent was between words of different languages... so unless ICANN has a stockpile of linguist experts in a million combinations of (Language A, Language B), it might not be practical. BTW, on SCOs I have to point out that standing was an issue. It's possible that some registrants have difference of opinion when existing registries for a similar TLD propose such. So having *only* the existing registries and applicants as having standing might not be enough... so granting standing for the IO on SCOs might be an alternative to overcome that. It still would be complying with every other IO guidance, of course. Rubens
Rubens, thanks for your comment. I suspect that if you read the papers you might reach a different result. As far as your other comment about translators, it wouldn't be as if thousands of translators would need to be on duty for the contention set. This wasn't the case for the panelists. Very truly yours, Karen J. Bernstein Bernstein IP 200 Park Avenue, Suite 1700 New York, New York 10166 Tel: (212) 339-9955 Fax: (212-682-0278 E-Mail: kjb@bernsteinip.com Website: www.BernsteinIP.com Skype: K.Bernsteinlaw This message is intended only for the use of the addressee and may contain information that is privileged and confidential by law. If you are not the intended recipient, you are hereby notified that any review, use, dissemination, or copying of this communication is strictly prohibited. If you have received this communication in error, please forward the email back and delete all copies of the message and attachments. On Feb 20, 2017, at 7:10 PM, Rubens Kuhl <rubensk@nic.br> wrote:
On Feb 20, 2017, at 8:24 PM, Karen Bernstein <kjb@bernsteinip.com> wrote:
Hi Folks,
For tomorrow’s meeting on WT3, I’d like to share with you my experience with the string confusion contention set I was involved with.
I represented the Government of Montenegro (which provides the .Me ccTLD) against Google’s proposed gTLD for .Meme in a string confusion contention set.
A clueless panelist was appointed who was an admiralty lawyer from British Columbia. Very obscure.
He also made his own conclusions that if the proposed gTLD were to be delegated it would not be confusing because he “thought so,” despite reputable external evidence that there might be collision problems and customer confusion.
Karen, The criteria was "confusingly similar", not that there might be collisions or confusions. There can be collision or confusions even considering only the legacy gTLDs, so the bar is not that low. From AGB: "A DRSP panel hearing a string confusion objection will consider whether the applied-for gTLD string is likely to result in string confusion. String confusion exists where a string so nearly resembles another that it is likely to deceive or cause confusion. For a 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." Frankly, I believe it was the right outcome for that specific objection...
Should my client have to hire a linguist to prove the point? Apparently, ICANN’s linguists didn’t see a problem with it. Perhaps we can talk about whether it makes sense to include an ICANN-appointed panelist for future string confusion contentions.
I was in the receiving end of an SCO from the largest TLD as objector, where they hired a linguist. Guess what ? We hired a linguist and a phonetics expert... although the actual objection and response are not published, much can be derived from the determination, available at https://newgtlds.icann.org/sites/default/files/drsp/25sep13/determination-1-... . And before we suggest ICANN to appoint panelists, in that case the confusion that was ruled to be non-existent was between words of different languages... so unless ICANN has a stockpile of linguist experts in a million combinations of (Language A, Language B), it might not be practical. BTW, on SCOs I have to point out that standing was an issue. It's possible that some registrants have difference of opinion when existing registries for a similar TLD propose such. So having *only* the existing registries and applicants as having standing might not be enough... so granting standing for the IO on SCOs might be an alternative to overcome that. It still would be complying with every other IO guidance, of course. Rubens
On Feb 20, 2017, at 10:30 PM, kjb@bernsteinip.com wrote:
Rubens, thanks for your comment. I suspect that if you read the papers you might reach a different result.
As far as your other comment about translators, it wouldn't be as if thousands of translators would need to be on duty for the contention set. This wasn't the case for the panelists.
It's was linguists, actually. And since one is comparing a word in one language to a word in another language, the required linguist expert would need knowledge of the two languages. One source lists a number in the vicinity of 6,909 languages, and that would generate almost 24 million combinations. More combinations when more languages are added to the mix, like in Montenegro, India, Switzerland and other countries that have more than one spoken language. One small practice run: let's say a Brazilian proposes a ".mé" TLD. "mé" is a Brazilian Portuguese slang for "booze", usually referring to Cachaça. Now let's compare it to ".me" on the POV of a Brazilian... how many Brazilians do you think will read ".mé" as something related to Montenegro, or even know where Montenegro is ? And how do you find an expert versed in both Montenegrin, Croatian, Albanian, Bosnian and Portuguese, with cultural knowledge of Southeastern Europe and Brazil that could see the issue from at least these two angles ? Rubens
participants (3)
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Karen Bernstein -
kjb＠bernsteinip.com
-
Rubens Kuhl