RE: [council] Motion from IDNG

["Edmon Chung" <edmon@xxxxxxxxxxxxx>]

Hi Kristina,
Forwarding a note from Avri who helped write the document:


Hi Edmon - 

On 19 May 2010, at 10:12, Rosette, Kristina wrote:

> Is the exception extended to apply only where (a) the same entity is the
applicant for both strings; or (b) there is a unity of source for the
strings by virtue of a corporate relationship or legal agreement between the
applicant and the operator of the prior string?  


My single person opinion.

I think that is pretty much up to the determination of the extended panel.
Obviously the second example shows that it does not need to be the same
entity.  It would be up to the panel to figure out whether a particular
instance of similarity is an instance of  detrimental or dangerous
similarity.

Had a WG been recommended and approved, this is part of what might have been
discussed, i.e guideline for that extended review.  

Of course Chuck and the other contributing discussants are all on the
council and can  all contribute their responses directly.

a.

(please feel free to forward or rephrase as you wish)




> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On
> Behalf Of Rosette, Kristina
> Sent: Wednesday, May 19, 2010 10:28 PM
> To: council@xxxxxxxxxxxxxx
> Subject: FW: [council] Motion from IDNG
> 
> 
> That should be "Is the exception intended to apply . . .."
> 
> Apologies. Too much multitasking and too little coffee.
> 
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On
> Behalf Of Rosette, Kristina
> Sent: Wednesday, May 19, 2010 10:13 AM
> To: Edmon Chung; Council GNSO
> Subject: RE: [council] Motion from IDNG
> 
> 
> Many thanks, Edmon.  This is very helpful.
> 
> As to #2, would you please forward the question to one of the authors?
> 
> Is the exception extended to apply only where (a) the same entity is the
applicant for
> both strings; or (b) there is a unity of source for the strings by virtue
of a corporate
> relationship or legal agreement between the applicant and the operator of
the prior
> string?
> 
> Many thanks.
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On
> Behalf Of Edmon Chung
> Sent: Wednesday, May 19, 2010 6:27 AM
> To: 'Council GNSO'
> Subject: RE: [council] Motion from IDNG
> 
> 
> Hi Kristina,
> 
> > 1.  It's my understanding that the recommendation is not limited to
> > IDN strings.  Is that correct?
> 
> While the issue may be more important/critical for IDN, it is correct that
it is not
> purely limited to IDN.
> 
> >
> > 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?
> 
> I think the critical issue is to make sure the understanding is clear.
For me at least,
> observing the progression of the IDN ccTLD fast track, I would be worried
that the
> issue might become another "glitch" in the implementation where strict
interpretation
> of the plan rules out certain applications even as they were not intended
to be ruled
> out.  As for the difference, I think they are similar, but perhaps best
left to the
> authors of the document to respond. :-)
> 
> >
> > 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?
> 
> Not sure what you mean... I think we had the IRT Final Report in mind when
> discussing and do not think we rejected it.  The problem at hand is that
we want to
> make sure confusingly similar TLD strings (especially in the case for IDN
TLDs) not
> be ruled out for consideration when it is being applied for by an
applicant who also
> operates (or is applying for) the confusingly similar TLD.  It seems to me
to be the
> opposite side of the coin, rather than conflicting with the IRT report.
> 
> >
> > 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.)?
> 
> wonder if this example might be easier to comprehend: ".cafe" and ".café"
> 
> >
> > 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?
> 
> Yes.  I believe that is the intent.
> 
> >
> > 6.  Does the IDNG recommend changing any other aspect of the Extended
> > Evaluation procedure?
> 
> At this point, due to
> 1. not wishing to further delay the new gTLD program (and/or trying to
minimize the
> perception of such) 2. not reaching consensus on any other approach No
other
> changes are recommended.
> 
> Note that we did mention: "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."
> 
> 
> > More specifically, would the existing prohibition on materially
> > changing the application apply and, if not, why not?
> 
> So it would follow that there is no recommendation to changing other
existing
> provisions in the DAG.
> 
> Hope the above helps clarify the issue better.
> 
> Edmon
> 
> 
> 
> 
> 
> > -----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.pd
> > f, 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.
> >
> >
> >
> >
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