Re: [council] Re: [gtld-council] Outcome of discussion on string checks on Wed 30 Aug in Amsterdam
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 theGAC) 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 ofconfusion 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 220.127.116.11 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.