Re: [council] Re: [gtld-council] Outcome of discussion on string checks on Wed 30 Aug in Amsterdam

[Robin Gross <robin@xxxxxxxxxxxxx>]

I also have strong concerns about the definition of "confusingly 
similar" below.
"Confusingly similar" and "likelihood of confusion" are LEGAL 
DETERMINATIONS that a judge makes after evaluating both parties rights 
to a mark and the particular use in question.  It is NOT something that 
a technical body is capable of adjudicating.   There are free expression 
rights, fair use rights, and an entire slew of legal evaluations that go 
into place to determine "likelihood of confusion".  ICANN is a technical 
body - not a legal body or the word police.  Decisions about what is 
likely to confuse the public is entirely inappropriate for a technical 
body to adjudicate.  Criteria (b) suggests we bar words that violate the 
legal rights of others.  Are we impaneling judges to decide these legal 
rights or are we to decide people's legal rights? 

I also have significant problems with criteria (d) (no controversial or 
religious words, etc.).  ICANN is in no to position to determine what 
words are too controversial to be used by others.  This opens up a can 
of worms to prevent online speech that will never get back.  ICANN 
should be supporting freedom of expression guarantees on the Internet - 
not censoring ideas that make some uncomfortable.    A dot freespeech 
domain name (www.robin.freespeech) would be controversial for many 
governments, so I guess that's out. 

How can we possibly suggest going down this dangerous road of censorship?

Also, which religions words get the special treatment?  Church of 
Scientology?  The Moonies?   Jim Jones cult?  The Rastas?  What if its a 
small religion of less than 500 people in Africa?  Will their sacred 
words be off limits to others in a domain name?   There are thousands of 
religions in this world.
Who gets to determine which religions receive the special treatment of 
barring words? 

Does this mean we can't have .god domain name?   What about .wicca or 
.zeus or .satan or .holygrail or .priest or .sacrifice or .tithing?  
Lots of religious words also have common non-religious uses - and 
they'll be barred also under this proposal.
Who do we think we are to be making these kinds of determinations about 
what speech may exist on the Internet in a domain name? 

The proposal below goes well beyond ICANN's mandate of technical 
determinations and is old-fashioned censorship.
Sincerely,
Robin



Mawaki Chango wrote:

> I am not sure if the definition of "confusingly similar" provided
> here is clear enough to avoid contentious interpretations, and if it
> totally reflects the discussions in Amsterdam. To my recollection, at
> the end of the discussions there was a widely shared opinion that we
> should restrain the confusion criterion to typo-confusion (i.e., in
> what the user can see and what s/he can imply from it).
>
> As explained in the meeting, everything in the root servers,
> including IDN, is just ASCII-based codes (coding character strings),
> and I'm assuming that there is no risk for a root server to make
> confusion even if the coding strings differ only by one slight
> character. Thus, having no reason to assume probable massive
> confusions based on the possibility of a few user's mistakes (always
> possible in user behavior for whatever reasons), the security and the
> stability of the Internet wouldn't be at risk here.
>
> Mawaki
>
>
> --- Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx> wrote:
>
>  
>
> > Process for string checks:
> >
> > (1)     Staff will make a determination and can engage appropriate
> > expert advice.
> >
> > (2)     Public comment (which may include input from Governments or the
> > GAC) that is specific to the criteria for a new string.   
> >
> > (3)     If staff think there may be an issue, then it is put to a panel
> > of experts with appropriate background.
> >
> >
> > String criteria:
> >
> > (a)     That the TLD string should not be confusingly similar to an
> > existing TLD string.  Confusingly similar means there is a
> > likelihood of
> > confusion on the part of the relevant public.   
> >
> > (b)     The string must not infringe the legal rights of any third
> > party.
> > (consistent with current requirements of Registered Name Holder -
> > see
> > clause 3.7.7.9 of the gTLD registrar accreditation agreement)
> >
> > (c)     The string should not cause technical issues (e.g not
> > .localhost, .exe etc)
> >
> > (d)     The string should not be <controversial, political, cultural,
> > religious terms> (develop text related to public policy issues with
> > GAC)
> >
> > (e)     The string should not be a reserved word.
> >
> >
> > Dispute resolution:
> >
> > (a) A dispute resolution process using independent arbitrators
> > where
> > existing registry operators could challenge a decision made by
> > ICANN
> > staff regarding whether or not a new gTLD string is confusingly
> > similar
> > to an existing gTLD string.  If a string is successfully challenged
> > as
> > being misleadingly similar, then no operator may subsequently
> > register
> > it.
> >
> > (b) A dispute resolution process using independent arbitrators
> > where
> > existing trademark holders could challenge the string, based on
> > UDRP.
> >
> >
> >    
>
>