[council] Fwd: Comments on recommendations # 2 and 20.

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Colleagues,

Please find attached herein the comments I submitted on the new
gTLD policy, as it is not covered in the synopsis prepared and
put forward before you earlier today.
Thanks,

Mawaki

Note: forwarded message attached.

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• To: gtldfinalreport-2007@xxxxxxxxx
• Subject: Comments on recommendations # 2 and 20.
• From: Mawaki Chango <ki_chango@xxxxxxxxx>
• Date: Wed, 29 Aug 2007 20:19:41 -0700 (PDT)

I am a current GNSO Council member, representing the
Non-Commercial User Constituency, but I'd like to submit these
comments on my personal capacity.

I. Recommendation 2: Strings must not be confusingly similar to
an existing top-level domain.

During the discussions on the Council, the point had been
repeatedly made clear (notably by the former Chair, Bruce
Tonkin) that: 
1) this was to mean indeed strings that are ?visually similar?
(i.e. visually confusing) or any variant thereof;
2) the actual interpretation will be specified in the
Implementation Guidelines, by the policy staff (which was the
reasons I failed to submit any statement here in the Council
report.)
As I understood it, the reason why the phrase ?confusingly
similar? is used rather than ?visually similar? or any variant
thereof, was that the concept ?confusingly similar? is readily
available in the trademark corpus of law, and the Council would
not take the risk and the liability to create a new legal
concept.  

However, there is also a risk in applying to a context a concept
that has been defined in a different context (whether by the
subject matter, historical or spatial.) There certainly are
situations where restating the status quo ante would equate to
creating now only new rights, but completely new types of rights
? thus, a new concept under the formal disguise of an old one.
We all know that this new gTLD policy is developed for a new,
international, multi-script domain name space. ?Confusingly
similar? did certainly not mean, a century ago, to establish an
ownership right over meanings or phonemes across contexts. In
the present circumstances though, it might be used to claim such
right from a linguistic universe to another. 

I therefore urge the GNSO Council to make clear in this new gTLD
report the limits intended to its use of the concept
?confusingly similar? in this particular context, and later on
the ICANN Board to seek further advice, as necessary, from legal
experts and authorities. The main objective for such
consultation should be to establish legally and internationally
valid mechanisms by which this concept may be operationalized
(and the policy enforced) in the fair spirit ? not just the
letter ? of the law as recognized by all parties involved.


II. Recommendation 20 and IG P

Given the definition provided for ?community? and for ?explicit
and implicit target?:
The Council needs to define what is a ?TLD that is targeted to a
community? in order to help the community understand what TLD
would NOT be included in the category of TLD application that
explicitly or implicitly targets a community.  Obviously, anyone
who is serious about applying for a TLD string will have in mind
a potential or ?ideal? customer base such that this
Recommendation and IG P would pretty much have a universal
scope, which I believe was not the initial intent.

Paragraph (h) ? ?determine? would be? likelihood? ? just doesn?t
make much sense, neither as a legal necessity nor, and even less
so, from a practical standpoint. 

Evidence is a notion that is proper for situations a posteriori
(or after the fact.) It is not rigorous to ask for, or claim to
provide, evidence of the future. Especially when that future is
just a likelihood that may or may not occur despite the
so-called evidence. On the contrary, we are in a situation where
we mean to say: ?IF? then there WILL be?? The 'conditionality'
already resides in the IF: in case such condition is met (i.e.,
TLD is granted), then the objectors hold the opinion is that
there will undoubtedly be detriment, and they provide (?hard? or
?sufficient?) data to support such stance.

Therefore, I?d like to suggest the following wording to replace
the current Paragraph (h):

The objector must provide sufficient data supporting any
anticipated detriment in order to allow the panel to determine
the likelihood and the level of such detriment to the rights or
legitimate interests of the community, or to users more widely.

Thank you for your attention.

Mawaki

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