I think his point illustrates, among other problems, how for-profit registries are not motivated to enforce any rule which limits the number of registrations it processes. Incidentally, I have no affiliation with Nike and am currently wearing New Balance shoes. Likelihood of confusion is a trickier issue that the statement above makes it appear to be. But since there is no real confusion between the products, and the sculpture site is not pretending to BE the shoe maker, there is no intellectual property issue here at all. I simply continue my search.
Likelihood of confusion is indeed a tricky issue.
Tha is not an argument against applying the test, it merely shows that fairness is not always easy. The absence of this determination is why some parties were able to practice what has been referred to as reverse domain name highjacking. Nevertheless, the requirements of fairness in domain name allocation requires some type of confusion determination. National courts are one solution, but they are an expensive, slow option. I recommend that new IANA swfitly seeks an expedited form of dispute resolution.