Re: [council] Motion from IDNG

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

I support the motion, but would support removing the examples from the
letter.  I think we may have a variety of reasons for wanting to permit
re-examination of strings deemed "confusingly similar," and don't want
to endorse any particular resolution in this letter.

(For example, I would find it competitively disturbing if registry
operators got first dibs on quasi-similar strings, and would want
competitors to be able to challenge a finding of similarity; the reverse
of the first-listed example.)

Thanks,
--Wendy

Edmon Chung wrote:
> Hi Everyone,
> 
> After much discussion at the IDNG Drafting Team, and as updated in previous 
> council meetings, we have identified a particular issue related to (but not 
> exclusively caused by) IDN TLDs.  Below is a proposed motion for the 
> council's consideration (also attached).
> 
> Edmon
> 
> 
> ================================
> 
> 1.0 Background
> In the GNSO Council’s final report to the Board regarding the introduction of 
> new gTLDs 
> (http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm ), 
> Recommendation 2 states, “Strings must not be confusingly similar to an 
> existing top-level domain or a Reserved Name.” In the latest version of the 
> Draft Applicant Guidebook, version 3 (DAG3), which can be found at 
> http://www.icann.org/en/topics/new-gtlds/draft-rfp-clean-04oct09-en.pdf, the 
> String Review step in the Initial Evaluation process includes a test to 
> determine “Whether the applied-for gTLD string is so similar to others that 
> it would cause user confusion” (Section 2.1).  
> 
> Section 2.1.1.1 goes on to describe the String Similarity Review as follows:
> 
> “This review involves a preliminary comparison of each applied-for gTLD 
> string against existing TLDs and against other applied-for strings. The 
> objective of this review is to prevent user confusion and loss of confidence 
> in the DNS.
> 
> “The review is to determine whether the applied-for gTLD string is so similar 
> to one of the others that it would create a probability of detrimental user 
> confusion if it were to be delegated into the root zone. The visual 
> similarity check that occurs during Initial Evaluation is intended to augment 
> the objection and dispute resolution process (see Module 3, Dispute 
> Resolution Procedures) that addresses all types of similarity.
> 
> “This similarity review will be conducted by an independent String Similarity 
> Panel.”
> 
> In its work on the topic of internationalized generic top level domain names 
> (gTLDs), the GNSO IDNG Drafting Team (DT) discovered what it believes is a 
> possible missing element in the String Similarity Review process that may be 
> critical in achieving the objectives of GNSO Recommendation 2.   The DT 
> discussed various circumstances where strings that may be designated as 
> visually similar may not be detrimentally similar and believes that both 
> factors must be considered in the initial string similarity review as well as 
> in any subsequent reviews that may occur as a part of dispute resolution 
> procedures if those occur.
> 
> The IDNG DT identified two cases that illustrate their concern and recognizes 
> that there could be others.
> 
> The IDNG DT noted that DAG3 does not allow for extended evaluation for the 
> case of initial string evaluation related to the issue of confusing 
> similarity of strings and recommends that the next version of the DAG be 
> modified to do so.  That then raises the issue with regard to what criteria 
> should be in the extended evaluation process.
> 2.0 Proposed Motion
> Whereas:
> 
> • The Draft Applicant Guidebook, Version 3 does not include an option for an 
> extended evaluation for strings that fail the initial evaluation for 
> confusing similarity and likelihood to confuse;
> • The IDNG Drafting Team established by the GNSO Council has discussed 
> various circumstances where strings that may be designated as confusingly 
> similar in the initial evaluation may be able to present a case showing that 
> the string is not detrimentally similar to another string;
> • The GNSO Council in Recommendation #2 on the GNSO Final Report on the 
> Introduction of New gTLDs in September 2007 intended to prevent confusing and 
> detrimental similarity and not similarity that could serve the users of the 
> Internet;
> • The IDNG Drafting Team also discussed the possibility of creating a Working 
> Group to further discuss the condition under which such non-detrimental 
> similarity could occur and the conditions under which such similarity could 
> be allowed. The Drafting Team was, however, unable to reach consensus on 
> recommending the creation of such a working group at this time.
> 
> Resolved:
> 
> The following letter be sent to Kurt Pritz, and copied to the ICANN Board, 
> requesting that Module 2 in the next version of the Draft Applicant Guidebook 
> regarding "Outcomes of the String Similarity Review" be amended to allow 
> applicants to request Extended Review under applicable terms similar to those 
> provided for other issues such as "DNS Stability: String Review Procedure".
> 
> 
> To:   Kurt Pritz and members of the ICANN New GTLD Implementation Team,
> CC:  ICANN Board
> 
> The GNSO Council requests a change to Module 2 of the Draft Applicant 
> Guidebook.  Specifically, we request that the section on "Outcomes of the 
> String Similarity Review" be amended to allow applicants to request Extended 
> Review under applicable terms similar to those provided for other issues such 
> as "DNS Stability: String Review Procedure".  We further request that a 
> section be added on String Similarity - Extended Review that parallels other 
> such sections in Module 2.
> 
> This request is seen as urgent because there are conditions under which it 
> may be justified for applicants for a string, which has been denied further 
> processing based on visual confusing similarity by the Initial Evaluation, to 
> request extended evaluation to evaluate extenuating circumstances in the 
> application that may make the application one where such similarity would not 
> constitute detrimental similarity.  This may occur, inter alia, in cases such 
> as:
> 
> • The same registry operator (for an existing gTLD or a proposed new gTLD) 
> could apply for a string that is similar to an existing or applied for string 
> in a manner that is not detrimentally similar from a user point of view.  For 
> example, it is possible that an applicant could apply for both a 
> Letter-Digit-Hyphen (LDH) gTLD in ASCII and a corresponding Internationalized 
> Domain Name (IDN) gTLD that could be deemed to be similar but not cause 
> detrimental confusion that the GNSO recommendation was trying to avoid.
> • A situation where there is an agreement between a new applicant Registry 
> Operator and the Registry Operator of an existing LDH gTLD that allows for 
> better service for the users in the geographical area where the new gTLD will 
> be offered.  For example, MuseDoma, the registry operator for .museum could 
> enter into an agreement with a new gTLD applicant to offer an IDN version of 
> .museum for a specific language community.  The two strings might be judged 
> to be similar but not detrimentally similar.
> 
> We thank you for your prompt attention to this GNSO council request.
> 
> 
> 
> 


-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.914.374.0613
Fellow, Silicon Flatirons Center at University of Colorado Law School
Fellow, Berkman Center for Internet & Society at Harvard University
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
https://www.torproject.org/