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    Uniform Dispute Resolution Policy (UDRP) Confusing Similarity in the UDRP
    posted by DavidP on Monday September 30 2002, @06:44AM

    J. Rossa McMahon has an interesting article in the Journal of Information Law and Technology on the UDRP's standard of "confusing similarity." McMahon argues that UDRP arbitrators have no real standard for determining whether or not a domain name is confusing. UDRP Panellists "have not been sufficiently rigorous in their consideration of confusing similarity," and it appears "that similarity alone" - as opposed to similarity that confuses the reasonable Internet use" - "seems to be sufficient for many Panelists."

    One problem, in McMahon's view, is with the concept of the 'reasonable Internet user.' Panelists, he argues, are generally "experienced in law and arbitration, rather than Internet usage," and really have no good ways to determine the circumstances in which the "reasonable Internet user" will, or will not, find two domain names "confusingly similar." It's of critical importance: "the lower the reasonable Internet user's level of Internet experience, or the lower their level of familiarity with trademarks, the greater the likelihood of confusion, hence the greater the level of protection provided to trademark holders."

    It's a good point, and its why I've made the suggestion in the past that juries, rather than individual panelists, should play a larger role in UDRP proceedings, for just this reason - that the task of defining "reasonable" conduct and "reasonable" users should fall not to the "experts" but to representatives of the community itself.

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    Confusing Similarity in the UDRP | Log in/Create an Account | Top | 9 comments | Search Discussion
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    Re: Confusing Similarity in the UDRP
    by fnord (groy2kNO@SPAMyahoo.com) on Monday September 30 2002, @11:11AM (#9459)
    User #2810 Info
    A jury of one's peers would be preferable as many of the panelists clearly have a low opinion of end-users, considering them unable to discern Tata from Bodacious-Tatas for example. I have always considered this 'confusing similarity' provision absurd in the namespace. If someone is selling a knockoff watch with the name Tymex by all means the Timex watch rights holder should have a cause of action. But if I register tymex.com and I don't put it to use or I do and use it for a purpose unrelated to watches, and I don't ask Timex or a competitor for money to transfer the domain to them, then I shouldn't lose the name. To argue otherwise is to try to extend trademark rights beyond any real world parallel. -g
    [ Reply to This | Parent ]
    Re: Confusing Similarity in the UDRP
    by fnord (groy2kNO@SPAMyahoo.com) on Tuesday October 01 2002, @07:01AM (#9470)
    User #2810 Info
    My mention of juries (I can't speak for others) was in response to david discussing it in his original submission, and pointing here, although you do cite Hardy regarding juries.

    Given that it is end-users who are supposedly confused by similarity, wouldn't a jury of end-users (even, or perhaps particularily, newbie end-users) be more definitive of what they find confusing? For that matter, one can conceive of a panel made up of appointees from ICANN constituencies that could largely lay claim both to being end-users, and being more technically sophisticated than many current panelists. As I, and others, have suggested an appeal mechanism (as opposed to subsequent court action), perhaps such a panel could act as a court of appeal, although there are admittedly other potential grounds for appeal than a finding of confusing similarity.

    Seeing as I'm talking off the top of my head, perhaps then a court of appeal could be made up of existing panelists (who allegedly understand legal matters, even if it doesn't always map to reality), other appointees (from ICANN constituencies or the relevant ccTLD if applicable) who understand technical matters (even to the extent that a domain name is more than a website, eg: for email, which many panelists and to an extent this article fail to grasp), and true end-users (to a greater extent than they are currently represented in ICANN's constituencies, or many ccTLDs). I don't think the percentage of wins to losses would change substantially, but I do think there would be less innocent victims, whilst also finding guilt for more of those who are adept at gaming the system. I don't know why it should come as a surprise to anyone that end-users don't appreciate being confused either and would rule accordingly. -g

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