RE: [council] Motion from IDNG

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

I agree with Avri's response.

Chuck

> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-
> council@xxxxxxxxxxxxxx] On Behalf Of Edmon Chung
> Sent: Wednesday, May 19, 2010 12:50 PM
> To: council@xxxxxxxxxxxxxx
> Subject: RE: [council] Motion from IDNG
> 
> 
> 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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