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