Here Are the Affidavits & Study Verisign Used In Support Of Its Objection To .Cam:

A couple of weeks ago we told you we were hearing that Verisign had filed objections to new gTLD strings that they believe are confusing to .com or .net for which Verisign is the registry including .Cam, .Bom, .Vet, .Company, .Network.

Last night we published Verisign’s objection to .Cam as being too close to .Com

In support of their objection, Verisign provided the Centere with two affidavit’s, one by a linguist who chatted about how .Com and .Cam sounds that same, and one filed by the former Administrator for Trademark Policy and Procedure of  the USPTO who says

“.Com is like a famous mark in the trademark field where the law dictates that newcomers stay far afield from the famous mark” and in his opinion .Cam is to confusing to .Com.

Verisign also submitted a study it has commissioned by ORC International, which asked sets of people if they were confused by .Cam and .Com and concludes 39% of internet users are confused by .cam and .com.

Its a interesting read.

Here is the affidavit of the linguist:

I, Gail Stygall, state the following:

1. That I am a linguist employed by the Department of English Language and Literature at the University of Washington, Seattle, WA. I am a Professor of English Language and an adjunct Professor of Linguistics. I have been employed by the University of Washington for more than 22 years. I earned my Ph.D. in English Language at Indiana University Bloomington in 1989 and also have a B.A. from Indiana University. Since I have been at the University of Washington, I have continued my research on how ordinary people understand complex language such as that employed in the legal or the financial community. I teach graduate students in the area, lead seminars, given papers at international conferences, and publish articles.

2. As a linguist, particularly an English language linguist, I am well aware of the sounds of English, both vowels and consonants, the structure of the language and its vocabulary. I have been asked by Verisign, Inc. to determine if, on grounds of visual, aural or semantic similarities, the newly proposed .cam TLD string is likely to prove confusing to consumers, especially with respect to the TLD .com.

3. The two words have visual similarity and a potential sound similarity. Both are three letters with the first and last letters exactly the same. The substitution of an “a” for an “o” is just as likely as a substitution of an “o” for an “a. In a visual presentation of the sounds made from places in the vowel quadrilateral area, we would see the following:








The diagram above represents the inside of the human mouth from front to back and high to low. The vowel symbols on the chart are placed approximately where each vowel is said. For example the [i] is a high front vowel which sounds like “eeee.” The pronunciation of .com would be [km], (or kahm) and the sound on the chart would be the lower back symbol at the bottom right. Many words in English start with these three sounds, including ones beginning with the spelling “cam,” such as the pronunciation of the word “calm.”

The proposed .cam would be pronounced with the lower left hand sound, the sound in the word cat. Both are sounds in the lower third of the mouth.

4. The opportunities for confusion among consumer is significant. Whether the pronunciation confusion between .com and .cam is quite possible. Moreover, the print a versus the print are also easily confused, as the shapes are similar.

5. Both com and cam have entries in the Oxford English Dictionary, with the com entry making a direct reference to “The designation for a top-level domain name.” The other, cam, is related to “computer-aided (or –assisted) manufacturing.” So both can have something to do with computers, thus having a semantic relation. Both are very similar visually and with two low tense vowels can be similar phonetically.

6. Based on my experience, these linguistic similarities suggest that it probable, not merely possible, that Internet users who encounter domain names with .cam are likely to be confused.

Here is the Affidavit of a James T. Walsh the former USPTO attorney on behalf of Verisign:

I, James T. Walsh, state the following:


1. I submit this affidavit on behalf of Verisign, Inc. (“Verisign”) in connection with the above-referenced matter.

In that matter, in accordance with procedures established by the Internet Corporation for Assigned Names and Numbers (“ICANN”), Verisign objects to the application for the letter string .cam. Verisign is the operator of the existing and widely recognized .com TLD.

Verisign objects to the .cam TLD on the grounds that it is confusingly similar to Verisign’s
.com TLD.

2. The purpose of this affidavit is to provide my expert opinion as to whether .com and .cam are confusingly similar based on over 30 years of experience in evaluating confusing similarity in trademark and related matters.


3. I hold a J.D. degree from Georgetown University Law Center, and I have been an active member of the bar of the District of Columbia in good standing since 1977.

4. Beginning in 1981, I served in various positions in the USPTO related to trademark matters for nearly 14 years. In the positions of Trademark Examining Attorney and Lead Attorney, from 1981 until 1987, I was responsible for the examination of more than 6,000 applications to register trademarks. In the USPTO, an Examining Attorney reviews and acts on each application for registration. In that examination, among other matters, the Examining Attorney conducts a search for conflicting marks to determine whether there is a likelihood of confusion between the mark under review and the mark in any prior-pending applications or prior registrations under Trademark Act § 2(d), 15 U.S.C. § 1052(d).

5. In management positions I held at the USPTO from 1987 until 1995, including as Administrator for Trademark Policy and Procedure, among other matters, I was responsible for the legal training of both new and experienced Trademark Examining Attorneys and for the provision of guidance to those individuals in the examination of complex and difficult applications. In the training and guidance I provided, I prepared materials and provided advice on a routine basis, among other matters, with respect to determinations regarding likelihood of confusion with prior marks.

6. In addition, in the positions I held from 1987 until 1995, l served as the editor of and/or the principal author of The Trademark Manual of Examining Procedure (TMEP), the principal authority, along with the Trademark Act and the Trademark Rules, governing the examination of trademark applications in the USPTO. In particular, among others, I authored or edited sections of the TMEP concerning determinations regarding whether there was a likelihood of confusion with prior marks.

7. Also, in the positions I held at the USPTO from 1987 until 1995, I was responsible for a number of international activities. For example, I organized and conducted numerous educational programs for foreign visitors to the USPTO, principally trademark officials from foreign governments. An important part of each of those programs was generally a discussion of standards governing likelihood-of-confusion determinations in the United States and internationally. also visited other countries, including Taiwan and Vietnam, and conducted similar programs in those countries. My international responsibilities also included serving as a trademark expert on delegations of the Office of the U.S. Trade Representative in negotiations with other countries, including China and Taiwan, regarding intellectual-property matters.

8. From May 1995 until June 2005, I served as Counsel to the Washington D.C. firm Arnold & Porter. In that position, my practice was limited to trademark and related matters. Again, I consulted on likelihood-of-confusion issues daily in that practice.

9. From June 2005 until February 2011, I served as an Administrative Trademark Judge at the Trademark Trial and Appeal Board (“TTAB”) ofthe United States Patent & Trademark Office (“USPTO”). In that position, I was responsible for deciding appeals from refusals to register trademarks by Trademark Examining Attorneys in the USPTO, and for deciding disputes between private parties regarding the registration of trademarks in opposition, cancellation and concurrent use proceedings. In my time at the TTAB, I authored or served on panels with other judges in hundreds of decisions. By far the most common issue in those cases was likelihood of confusion. In determining the likelihood of confusion in each of those cases, the TTAB must, first and most importantly, consider whether the marks at issue are confusingly similar.

10. Since February 2011, I have been self-employed in my legal practice. In my current practice, I provide legal consulting services in trademark matters.

11. Furthermore, since 1987, I have often made presentations on trademarks to professional groups, government officials and law students, including presentations regarding likelihood of confusion.


12. Verisign asserts that the applied-for .cam TLD is confusingly similar to the existing and well recognized .com TLD which Verisign operates. Under the ICANN procedures, an operator, such as Verisign, may object to the .cam application based on the belief that there will be “string confusion” as between .cam and .com. Under the procedures, “String confusion exists where a string so nearly resembles another that it is likely to deceive or cause confusion. For string confusion to exist, it must be probable and not merely possible that confusion will arise in the mind of the average, reasonable Internet user. Mere association, in the sense that the string brings another string to mind, is insufficient to find likelihood of confusion.”

13. Under ICANN ‘s procedures, a “string confusion” objection is not just limited to visual similarity, even though an initial screening process by ICANN is limited to visual similarity. Prior to approving gTLD applications for further processing, ICANN performs an initial algorithmic analysis, limited to the appearance of the letter strings, to test for similarity. The merits or limits of the use of that tool are beyond the scope of my expertise and the scope of this affidavit. More importantly, the guidelines governing the ICANN process recognize the inherent limitations of the algorithmic analysis and state that it is “…not intended to replace human evaluation of similarity…” which ICANN acknowledges to be essential in the final analysis. Rather, confusion based on any type of similarity (including visual, aural, or similarity of meaning) evident from human evaluation may be claimed by an objector. gTLD Applicant Guidebook (v. 2012-06-04), Module 2, Section

This is very similar to U.S. trademark law, which also assesses mark similarity based on aural similarity and similarity of meaning, in addition to visual similarity.

14. There is also a strong conceptual similarity between the standards the ICANN procedures adopt and long-established standards governing likelihood of confusion which have developed under both U.S. trademark law and trademark law more broadly. In fact, the ICANN standard refers explicitly to the trademark concept of “likelihood of confusion.” The ICANN standard requires a probability of confusion, not a mere possibility, consistent with trademark-law standards. The ICANN standard looks to the perception of the ”average, reasonable Internet user” in the same way trademark law looks to the average, reasonable consumer. The ICANN standard discounts a circumstance where one letter string merely “brings to mind” another in the same way the likelihood-of-confusion standard in trademark law likewise requires something more. This is no surprise in the conceptual similarity because there is no need to construct an entirely new conceptual model where a useful one, the trademark standard, already exists.

15. For example, the Court of Appeals for the Federal Circuit, the primary reviewing comi for USPTO determinations, employs a 13-factor test for likelihood of confusion first adopted by its predecessor Court in In re E.l. duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). While the similarity of the marks is a key consideration under this multifactor test, in the duPont analysis, one might conclude that a factor, such as significant differences between the respective goods and services of the parties, is sufficient to preclude a likelihood of confusion even if the marks are similar.

In contrast, in the ICANN process, the focus is on whether the letter strings, are, in fact, confusingly similar, although the existence of other factors could make confusion more likely under certain circumstances.

16. In comparing the letter strings, in the human analysis, again the ICANN process adopts a methodology entirely consistent with that traditionally used in comparing potentially conflicting trademarks for confusing similarity. The ICANN guidelines specify, “…confusion is based on any type of similarity (including visual, aural, or similarity of meaning)…” These are essentially the same elements considered in evaluating whether two trademarks are confusingly similar: appearance, sound, connotation and commercial impression. ld. at 1361.


17. I find important similarities between .cam and .com in appearance, sound and meaning.

The fact that .cam and .com each include just three letters and each begin with “c” and end with “m” is significant.

This fact results in a striking similarity in appearance and sound.

The one letter difference between the letter strings, .cam versus .com., is virtually imperceptible.

Furthermore, .cam possesses no meaning, obvious or otherwise, which would serve to distinguish the letter strings.

Thus, there is no difference in meanings.

Then there is the further conspicuous fact that, since the inception of the public use of the Internet, .com has become the most common and desirable TLD for use in general, and in particular, by companies engaged in commercial activity.

The .com TLD has become shorthand for business and businesses in the world of the Internet in our everday vocabulary. In this respect .com is like a famous mark in the trademark field where the law dictates that newcomers stay far afield from the famous mark.

Consequently, the average Internet user, so conditioned to hearing and seeing the .com TLD, will inevitably mistake .cam for .com or .com for .cam in navigating the Internet. Under the circumstances, the striking similarities in appearance, sound and meaning leads to a strong probability of confusion.

Therefore, I conclude that .cam and .com are confusingly similar

Here is the report of the study conducted by ORC International

Verisign, Inc., operator of the .com TLD registry, has filed objections to three applications with ICANN for a new gTLD, .cam.

Verisign retained me to design and conduct a survey to determine whether there is likely to be string confusion between the applied-for .cam gTLD and the existing .com TLD.  This report details the methodology and results of the survey.

As described in more detail later in this report, the survey results showed a net confusion level of 39% that must be attributed to the similarity of the TLDs .cam and .com.

In my experience, a net rate of 39% confusion is high and suggests that it is probable, and not merely possible, that there would be a substantial likelihood of confusion among Internet users who encounter domain names with the .cam TLD.


This study was designed, supervised, and implemented by ORC International under the supervision of Hal L. Poret, Senior Vice President.

I have personally designed, supervised, and implemented over 450 consumer surveys concerning consumer perception, opinion, and behavior.

Over 150 of these surveys have concerned issues of consumer confusion, often in the context of trademarks and the internet.  I have personally designed numerous studies that have been admitted as evidence in legal proceedings and I have been accepted as an expert in survey research on numerous occasions by U.S. District Courts, the Trademark Trial and Appeal Board, the FTC, and the National Advertising Division of the Council of Better Business Bureaus (NAD).

I have frequently spoken at major intellectual property and legal conferences on the topic of how to design and conduct surveys that meet legal evidentiary standards for reliability, including conferences held by the International Trademark Association (INTA), American Intellectual Property Law Association, Practicing Law Institute, Managing Intellectual Property, Promotions Marketing Association, American Conference Institute, and various bar organizations.  In 2010, I published an article regarding online surveys in The Trademark Reporter, a journal published by the International Trademark Association.

In addition to my survey research experience, I hold bachelors and masters degrees in mathematics and a J.D. from Harvard Law School.  Additional biographical material, including lists of testimony and publications, is provided in Appendix A.


A total of 400 qualified consumers participated in this online1 survey among internet users.

In addition to the fact that respondents accessed and completed the survey online, respondents were confirmed to be internet users by questions asked during the survey.

A total of 87% of respondents answered that they access the internet more than once a day and an additional 10% answered that they access the internet once a day, with the remaining 3% answering once every 2 to 3 days or once every 4 to 5 days.

In addition, 91% of respondents had made an online purchase in the past 90 days and the majority of respondents answered that they use the internet for a variety of purposes, including maps and directions, news and weather, email, social media, entertainment, browsing, using search engines, watching or listening to music, videos, or other content and downloading and uploading content/files.

Accordingly, the sample represented an appropriate universe for testing the issue of potential domain name confusion.

The sample of respondents was also structured to be representative of the universe of internet users by age and gender.  Data from the Pew Internet and American Life Project showing the rate of internet usage within various age and gender groups was combined with census data to set quotas to appropriately represent the relevant population.2

Prior to taking the survey, respondents were asked a quality control question to ensure they were paying attention to the instructions and questions.  Respondents were asked

1   Online surveys are well-accepted in the field of survey research as a standard, reliable methodology. Indeed, online surveys are now the most common method of conducting market research among consumers. Businesses and other organizations routinely make decisions of importance based on the results of online survey research, and online surveys have been accepted in evidence in numerous U.S. District Court and Trademark Office proceedings. I have personally designed and executed numerous internet surveys that have been accepted by courts.

The sample consisted of the following proportions:

36% age 18- 34

32% age 35-49

21% age 50-64

and 11% age 65 and over.

The sample was split 51% female and 49% male.

As a general overview, the survey design involved first exposing respondents to three domain names, including a domain name ending in the objected-to gTLD .cam.

Respondents were later exposed to three other domain names, including a domain name that shares the same second level domain as the previously shown .cam domain name but ending instead with the .com TLD.  For each of the three domain names shown in the latter part of the survey, respondents were asked whether the domain name is the same as one of the ones they saw earlier, or different, or if they don’t know. The following paragraphs detail the specific survey design.

Respondents were first provided with the following introduction regarding domain names:

In a moment you will be shown several internet domain names.

A domain name is the address of a specific website.

The following are examples of five different domain names:

They were then asked if they understand what a domain name is.  Respondents who did not understand were excluded from the survey.

Respondents were next shown the following instruction:

On each of the following three screens you will be shown a domain name for a website and a brief description of the website.  Please look at each domain name and description and then click continue to advance to the next screen.

One at a time, respondents were then shown three domain names along with descriptions of the website.  The purpose of showing three names and descriptions was to create a more realistic context in which internet users come across a variety of websites with various domain names and types of content.

One of the domain names and descriptions shown was:

Description: Offers products and services relating to photography, video, and web cameras.

This name and description were used to simulate a use of the .cam gTLD because it is generally consistent with the intended uses of the .cam gTLD as outlined in the public portion of the applications available on the ICANN website, particularly the mission statements regarding the .cam gTLD.  By showing the .cam TLD to respondents in the context of a website focused on camera-related products and services, the survey gave respondents a fair and realistic chance to understand the .cam TLD as a different TLD relating to cameras.

The two other domain names and descriptions shown were:

Description: Review information regarding online vendors of musical instruments around the world.

Description: Offers descriptions and information regarding financial services advising and consulting firms.

Again, these domain names and descriptions were included in the test to simulate an internet user coming across a variety of types of domain names and websites while using the internet.

The order in which the three domain names was shown was randomly rotated to avoid order bias.

To create a realistic period of distraction before questioning respondents about additional domain names, respondents were then asked three question about their use of the internet generally.  Respondents were asked when they last made an online purchase (if at all), how often they access the internet, and which activities they regularly use the internet for.

One at a time, respondents were then shown three additional domain names.  For each domain name, respondents were asked if it is one of the three domain names they were shown earlier or if it is not one of the three domain names they were shown earlier, or if they don’t know.

One of the three domain names shown in this part of the survey was designed to test potential confusion between the .cam gTLD and the .com TLD:

Since this domain name shares the same second level domain name as one shown earlier ( but has a different TLD (.com instead of .cam), this tested the likelihood of respondents confusing a .cam domain name with a .com domain name.

Respondents were also asked about two other domain names: and

These names were selected because they contain superficial similarities to domain names shown earlier (that referenced musical instruments and financial services) but are clearly not confusingly similar to them.  In addition to taking the focus off the two chief domain names at issue, these other domain names also helped measure the tendency of respondents to incorrectly answer that a domain shown to them is one of the ones they saw earlier due to inattention, guessing, or other factors that do not indicate confusing domain name similarity.

A total of 200 respondents participated in the above-described Test Group.

The survey also contained two Control Groups, consisting of 100 respondents per group.  The purpose of the Control Groups was to determine the extent to which any confusion between the and domain names can be attributed to the similarities of the TLDs as opposed to the similarity of the second level domains.

The Control Groups were identical to the Test Group with one exception.

In one Control Group, instead of respondents being first shown a domain name ending in .cam and then a domain name ending in .com, respondents were shown the following two domain names:

FIRST PART OF SURVEY:  www.mobilephoneplans.and


The .AND gTLD was selected for use in this Control Group because it is another gTLD that has been applied for that is clearly not confusingly similar to the .com TLD.

Accordingly, by testing whether respondents answer that is one of the domain names they were shown earlier when, in fact, they were shown www.mobilephoneplans.and, we can determine how much of any “confusion” must be attributed primarily to the second level domains or other forms of survey noise, rather than similarity of TLDs.

By subtracting the “confusion rate” in the Control Group from the confusion rate in the Test Group, we can arrive at the net confusion level that is attributable to the similarity of TLDs.

There was also a second control group that tested the following two domain names:



The .coupon gTLD is also a newly applied-for gTLD that is not confusingly similar to the .net TLD.

Again, by testing two domain names that share the same second level domain but clearly have non-confusing TLDs, we can assess how much of the confusion shown in the survey is due to the second level domain names or other factors and subtract that from the Test Group result to isolate the amount of confusion caused by similarity of TLDs.

The data was collected from March 8, 2013 through March 11, 2013.


In the Test Group, the following responses were given when respondents were asked about the www. domain name (after having earlier been shown

Response re:

It is one of the domain names shown earlier

It is not one of the domain names shown earlier

Don’t know

The 78% rate of answering that the domain name is one of the domain names shown earlier (which was actually can be compared to the results for other names included in the study.

The following are the rates at which respondents incorrectly answered that the other two names asked about in the Test Group were the same as domain names they had been shown earlier.

False positive responses:

As the above table shows, the 78% rate of confusion between and far exceeds the 13% rate of confusing two other domain names with mere superficial similarities.

Most importantly, the 78% rate must be compared to the Control Group results where respondents were shown two domain names with the same second level domain but non-confusing TLDs.

The following were the rates of “confusion” shown in the Control Groups:

42% Answered that is one of the domain names shown earlier when it was actually www.mobilephoneplans.

36%  Answered that is one of the domain names shown earlier when it was actually  36%

Average  39%

These results show an average noise level (or false positive level) of 39% — in other words, 39% of survey respondents “confuse” two domain names when they have the same second level domain but non-confusing TLDs.

By subtracting this 39% noise rate from the 78% Test Group result, we arrive at a net confusion level of 39% that must be attributed to the similarity of the TLDs .cam and .com and cannot be dismissed as the product of similar second level domains or any other form of survey noise.

In my experience, a net rate of 39% confusion is high and suggests that it is probable, and not merely possible, there would be a substantial likelihood of confusion among internet users who encounter domain names with the .cam TLD.


  1. Grim says

    Wow. Talk about details. But they could have left out the diagram, since anyone who got past second grade knows about the sounds made from places in the vowel quadrilateral area. Pffft.

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