RE: [council] Motion from IDNG

["Rosette, Kristina" <krosette@xxxxxxx>]

I have some questions:

1.  It's my understanding that the recommendation is not limited to IDN
strings.  Is that correct?

2.  Does "not detrimentally similar" mean something other than "not
likely to deceive or cause confusion" (DAGv3 2.1.1.1.2)?  If so, what?

3.  The IRT had identified the possibility of "false positives" based on
analysis limited to visual similarity.  It recommended that (a) the
similarity analysis include similarity as to sight (visual), sound
(aural), and meaning; and (b) a request for reconsideration process be
created.  (See pages 19 and 46 of IRT Final Report, which is accessible
at
www.icann.org/en/topics/new-gtlds/irt-final-report-trademark-protection-
29may09-en.pdf .)   Did the IDNG consider these recommendations and, if
so, why did it reject them?

4.  Can you please provide a more specific example of the strings
covered by the first example (* 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.)?

5. If I understand the second example correctly, the two strings are
characterized as not being detrimentally similar because there is a
unity of source by virtue of the agreement between MuseDoma and the
applicant.  Is that correct?  

6.  Does the IDNG recommend changing any other aspect of the Extended
Evaluation procedure?  More specifically, would the existing prohibition
on materially changing the application apply and, if not, why not? 

Many thanks.

K

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On Behalf Of Edmon Chung
Sent: Wednesday, May 12, 2010 2:02 AM
To: 'Council GNSO'
Subject: [council] Motion from IDNG

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.