IDNs: from confusion to Confucianism

ICANN GNSO IDN working group is busy with making policies for IDN-gtlds. Some issues are really interesting:

1. Why confusing similarity is an issue?

If a new IDN-gtlds is confusingly similar with a preexisting gtld-string, it should understandably be precluded. However, existing gtlds registries want more than a defense to preclude any third party’s such IDN-strings in the assessment process but a priority right regarding such IDN-strings.

The idea of a priority right is deeply rooted in a suspicious concept of registries’ intellectual property (arguably non-existing under the law), rather than consideration of consumer confusion. If a similar string is confusing to the public, it is confusing irrespective whether it is in the hands of a new registry or a preexisting one.

2. What is confusion?

The three-category division (graphic, phonetic and semantic confusion) is actually flawy. Phonetic confusion is a redundancy in DNS. Graphic (visual) confusion is a key issue that should be addressed first at protocol level and then at policy level. However, if semantic confusion is going to be tackled, a door to hell is opened. Is “Reise” in German semantic to “.travel” gtlds? Where legal protection of a well-known mark cannot be automatically extended to any “translation” in any language (Paris Convention, TRIPS agreement, Article 16), why a gtld-string can extend to any semantic string? What are semantic? Is ICANN better than a court and more knowledgable than linguists and legal experts? This issue is so complicated that it is more Confectionist than confusing.

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